Petition for Writ of Certiorari — James Phillips, Petitioner v. Illinois

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2017 IL App (1st) 142553-U

No; 1-14-2553

Order filed April 10, 2017

First Division

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as

precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).

IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS,

Plaintiff-Appellee,

Appeal from the

Circuit Court of

Cook County.

No. 11 CR2281

V.

Honorable

Dennis J. Porter,

Judge Presiding.

JAMES PHILLIPS,

Defendant-Appellant.

JUSTICE HARRIS delivered the judgment of the court.

Presiding Justice Connors and Justice Mikva concurred in the judgment.

ORDER

¶. 1

Held: We affirm the trial court's dismissal of defendant's first-stage postconviction

petition where defendant failed to present an arguable claim of ineffective

assistance of counsel for denying him the right to testify.

¶2

Following a bench trial, defendant James Phillips was convicted of two counts of

predatory criminal sexual assault of a child and one count of aggravated criminal sexual abuse

No. 1-14-2553

and sentenced to consecutive prison terms of eight, eight, and three years, respectively. We

affirmed defendant's conviction on direct appeal. See generally People v. Phillips, 2014 IL App

(1st) 120662-U (unpublished order under Supreme Court Rule 23).

13

Defendant now appeals from an order of the circuit court of Cook County summarily

dismissing his pro se petition for relief under the Post-Conviction Hearing Act (725 ILCS 5/122I et seq. (West 2014)). Petitioner argues that his petition raised an arguable claim of ineffective

assistance of counsel where he alleged trial counsel failed to call defendant as a witness despite

defendant's desire to testify. For the reasons set forth below, we affirm.

¶4

A detailed recitation of the underlying facts in this case is included in our earlier decision.

See People v. Phillips, 2014 IL App (1st) 120662-U. We will recite the facts necessary to our

discussion of the particular issue on appeal. Defendant was charged with four counts of

predatory criminal sexual assault of a child, four counts of criminal sexual assault, three counts

of aggravated criminal sexual abuse, and six counts of criminal sexual abuse stemming from acts.

occurring between July 1, 2008 and September 30, 2009.

Before the start of trial, the following colloquy occurred:

"[THE COURT:] Okay. Jury waiver accepted. I have one more thing to talk to

you about And that is, you have the right to testify in your own defense.

[DEFENDANT:] Yes.

[THE COURT:] That means if you want to testify, you get to testify. It • is your

call. It is not my call, not the State's call, not your lawyer's call. It is your call.

Nobody else but you.

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No. 1-14-2553

If you want to testify, you can testify. If you don't want to testi&, nobody

can make you testify. Do you understand?

[DEFENDANT:] Yes, sir.

[THE COURT:] It is up to you, James Phillips, nobody else.

[DEFENDANT:] Yes, sir.

[THE COURT:] Do you understand?

[DEFENDANT:] Yes.

[TILE COURT:] All right. So, if I don't talk to you about this anymore, if we get

to the end of the trial and your lawyers says you rest, you haven't testified and

you want to, you let me know that.

Don't sit over there like a bump on a log and not say anything. I might

figure talked [sic] and decided not to testify.

Do you understand?

[DEFENDANT:] Yes.

[THE COURT:] It is an important decision. You ought to make it after getting his

best advice on the matter, but like I say it is your call. Do you understand?

[DEFENDANT:] Yes. Yes."

$5

At the 2011 trial, D.H. testified that, in 2008 when she was 11 years' old, she would stay

"almost every day" at her aunt's, Sheila Hall's, house. D.H. would stay the night with her brother

and two sisters. D.H,'s cousin Eric Hall, his infant daughter, and Sheila Hall's ex-boyfriend,

defendant, lived in the home. D.H. saw defendant at the home every day but stopped going

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No. 1-14-2553

"because of [defendant]." Defendant touched D.H. both during the day and night when she was

sleeping in a back room. D.H.'s siblings slept in the same room, sometimes in the same bed.

16

On four separate occasions, defendant touched D.H.'s vagina with his hand, touched her

vagina with his penis, touched her vagina with his mouth, and had her hold his penis in her hand.

D.H. did not attempt to cry out or wake up her siblings because she was afraid of defendant.

¶7

In 2010, D.H.'s cousin, Tanisha Townsend, discovered D.H. crying, prompting D.H. to

tell her what defendant had done. She told Townsend that defendant had done this to her about

20 times. D.H. eventually told the police what had happened.

18

On cross-examination, D.H. testified the room she slept in did not have a door and that

others, including Sheila Hall, Eric Hall, and defendant, slept in the same home. She further stated

that she told Cynthia Pettis of the Department of Children and Family Services that, when

defendant tried to penetrate D.H., she "hollered" for defendant to stop and he complied.

$9

D.H. also stated that she "struggled" and "wriggled" while defendant was touching her,

but her siblings did not wake up despite sometimes being in the same bed. D.H. testified that

variously the incidents with defendant occurred more than 30 but less than 40 times over the two

and a half years D.H. stayed at the Hall house. During this, defendant never threatened her or

stated he would hurt D.H. if .she told anyone. D.H. also testified that defendant came into her

room every other night so there were hundreds of incidents. She told Detective Schmuck that

defendant touched her approximately 60 times and not hundreds of times.

1 10

On redirect examination, D.H. testified that it wasn't a "holler," it was "like a whisper"

so that she would not wake her siblings. Further she stated that Sheila's bedroom door was

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No. 1-14-2553

always closed. D.H. testified that defendant would "sometimes" cover her mouth and nose with

his hand.

T 11 On recross-examination, D.H. stated she did not mention that defendant covered her

mouth to either. Pettis or Schmuck.

112 Detective Ronald Schmuck testified that, after interviewing D.H. regarding a sexual

assault and putting out an investigative alert, he was contacted by defendant in October 2010.

Defendant stated that he was out of town and did not know when he would be back but would

contact Schmuck immediately when he returned. Defendant never contacted Schmuck again and

was arrested onJanuary 17, 2011.

¶ 13 The next day, Schmuck interviewed defendant. Prior to the interview, defendant was in

lockup, which has "a very set feeding schedule." Schmuck stated that he did not give defendant a

full meal but did provide him with two bags of chips, which defendant ate. Schmuck did not

know if defendant ate in lockup, but did know he would have been offered food. Schmuck gave

defendant a bottle of water at the beginning of the interview and then another several hours later.

The interview lasted several hours and, during this time, Schmuck asked defendant multiple

times if he needed food, water, or to use the [bathroom]. During the interview, defendant used

the bathroom three or four times. Schmuck did not deny defendant food, drink, or use. of the

bathroom. He further testified that he did not mistreat defendant.

¶14 Defendant initially denied the allegations. After speaking with defendant, Schmuck

contacted Assistant State's Attorney Lisa Morrison, who interviewed D.H. at D.H.'s home.

Schmuck interviewed D.H. again after defendant initially denied the allegations and "learned

more information with each additional. interview" with her. Schmuck Mirandized defendant and

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No. 1-14-2553

interviewed him again. Defendant denied the allegations again but then admitted to the following.

four incidents: licking D.H.'s vagina in the bathroom of Sheila Hall's home in the summer of

2008, touching the area of her vagina while she was wearing clothes, that his penis touched her

vagina as they hugged wearing "short shorts," and later touching her vagina with his penis but

not penetrating her because, he "realized it was wrong." The first three incidents differed from

D.H.'s account, but Schmuck did not confront her about these incidents when he subsequently

interviewed her.

1 15

Morrison and Schmuck then interviewed defendant, who signed a written statement that

was consistent with the inculpatory statement previously given. During defendant's interview

with Morrison, defendant described three incidents but stated there could be more because he

was "drinking alcohol heavily at the time these incidents were happening." These incidents

differed from D.H.'s account, in particular because defendant stated D.H. initiated each incident.

Schmuck stated that he confronted defendant with D.H.'s account of penis-vagina and mouthvagina contact, and that defendant's description of the events were "his take on things."

Schmuck testified that the handwritten statement was not consistent with defendant's initial

denial.

1 16 Assistant State's Attorney Lisa Morrison testified that she interviewed D.H. with

Detective Schmuck at D.H.'s home. She then Mirandized and interviewed defendant with

Schmuck at the police station. Morrison told defendant that she was not his attorney but was a

prosecutor. Defendant stated he understood and spoke with Morrison and Schmuck. During the

interview, defendant was not handcuffed, did not indicate he was hungry, did not, indicate he

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No. 1-14-2553

wanted something to drink, and was taken to the bathroom when he indicated he needed to use it.

Further, defendant was given a bag of chips and a bottle of water at one point in the interview.

¶ 17 Defendant told Morrison his version of the events. He then indicated outside the presence

of Schmuck that he had not been denied food, water, or the use of the bathroom and that no

threats or promises were. made to. induce his statement. Morrison wrote out defendant's

statement, which defendant corrected and signed. Morrison then read the statement at trial. In the

statement defendant described three incidents: when D.H. kissed him on the lips, when he licked

her vagina, and when his penis touched D.H.'s vagina while they were hugging. The statement

further indicated defendant was treated "fine" by Schmuck and that his statement was given

freely and voluntarily.

1 18

On cross-examination, Morrison testified that the interview room contained a bed but no

pillow or blanket. Morrison indicated that during D.H.'s interview, D.H.stated there were

several incidents in the bathroom but that the majority occurred in the bedroom where she slept.

Although D.H. did not describe the incidents defendant admitted to, Morrison believed defendant

was putting his own spin on them by trying to blame D.H.

1 19

After the State rested its case, defense counsel informed to the trial court that "maybe the

defendant" would testify in defendant's case-in-chief.

1 20 Defense witness Cynthia Pettis of the Department of Children and Family Services

testified that, when she interviewed D.H., D.H. stated she hollered for defendant to stop and that

defendant, molested her 20 times. Penis indicated "holler" does not necessarily mean to raise

one's voice. Pettis further indicated she informed defendant that she completed the investigation

and her recommended finding for the allegations was "unfounded."

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No. 1-14-2553

1 21 Defense witnesses Je'mya and J'nae Williams, D.H.'s sisters, both testified that they

never saw, defendant in the bedroom they slept in with D.H.

1 22

Defense witness Eric Hall testified that he had seen defendant inside the bedroom used by

D.H. but not while she was sleeping.

T 23

Defense witness Sheila Doyle, also known as Sheila Hall, testified that her niece D.H.

and DIL's siblings stayed at her home certain nights in the summertime. She stated that she saw

defendant in the bedroom with D.H. and her siblings "uncountable" times but never saw him "do

anything inappropriate with anybody."

1 24

The trial court found defendant guilty of two counts of predatory criminal sexual assault

of a child and one count of aggravated criminal sexual abuse with the remaining counts merging.

The court found D.H. testified "fairly credibly" and that D.H.'s "lack of immediate outcry" was

understandable given her age. It further noted that defendant's written statement and statements

to police were "highly corroborative" of D.H.'s testimony and that it appeared defendant was

attempting to minimize his role in the incidents. It sentenced defendant to consecutive prison

terms of eight, eight, and three years.

1 25

On direct appeal, defendant argued his trial counsel was ineffective for failing to file a

motion to suppress his statement as involuntary because he went "without adequate food or sleep

and after multiple interrogations." People v. Phillips, 2014 IL App (1st) 120662-U, 1 24. We

affirmed defendant's conviction. Id. ¶ 28.

1 26

Relevant here, defendant filed a verified pro se postconviction petition alleging, inter

alia, that his trial counsel was ineffective by preventing him from exercising his right to testify at

trial. Specifically, he alleged "trial counsel failed to call Defendant as a witness at trial which

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No. 1-14-2553

defendant told his counsel's [sic] to call him as a witness trial counsel's [sic] refused to call

defendant to testify." He also alleged that "Detective Schmuck did threaten and promises [sic],

defendant something" and that "Detective Schmuck force [sic] defendant into making a false

statement doing [sic] interrogation." The trial court summarily dismissed the petition as frivolous

and patently without merit and, further, barred by res judicata or waiver,

1 27 On appeal, defendant argues the trial court erred in summarily dismissing his

postconviction petition in the first stage of the proceedings. Specifically, he contends that trial

counsel was ineffective when he failed to call him to testify and thus, prevented him from

establishing that his custodial statements were false and coerced because Detective Schmuck

threatened him.

¶ 28 The Post-Conviction Hearing Act provides a procedural mechanism for a defendant to

assert a substantial denial of his constitutional rights in the underlying proceedings giving rise to

his conviction. 725 ILCS 5/122-1 (West 2014); People v. Tate, 2012 IL 112214, 1 8. At the first

stage of the proceedings, the trial court examines the petition, taking the allegations as true, and

determines if it is frivolous or patently without merit. People v. Hodges, 234 111. 2d 1, 10 (2009).

If the petition has no arguable basis in either law or fact, it should be summarily dismissed as

frivolous or patently without merit. Tate, 2012 IL 112214, 1 9. A petition lacks an arguable basis

in law or fact when it is based on "an indisputably .meritless legal theory or a fanciful factual

allegation." Hodges, 234 ill. 2d at 16. Allegations are fanciful when they are "fantastic or

delusional," while an indisputably meritless legal theory is one that is completely contradicted by

the record. Id. at 16-17.

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No. 1-14-2553

¶ 29 In order to state a claim for ineffective assistance of counsel, the defendant must show

both that counsel's performance was objectively unreasonable and that he was prejudiced as a

result of counsel's performance. Strickland v. Washington, 466 U.S. 668, 687-688 (1984). In

order to prevail on his ineffective assistance of counsel claim, the defendant must establish both

prongs. See People. v. Colon, 225 Ill. 2d 125, 135 (2007). "That is, if an ineffective-assistance

claim can be disposed of because the defendant suffered no prejudice, we need not determine

whether counsel's performance was deficient." People v. Graham, 206 III. .2d 465, 476 (2003).

T30 In the context of a first-stage postconviction proceeding, the petition may not be

summarily dismissed "if (i) it is arguable that counsel's performance fell below an objective

standard of reasonableness and (ii) it is arguable that the defendant was prejudiced." Hodges, 234

Ill. 2d at 17. We review de novo the summary dismissal of a postconviction petition. Id at 10.

131

Defendant argues trial counsel was ineffective because he refused to allow defendant to

testify. A defendant has a fundamental constitutional right to testify at trial. People v. Madef, 177

Ill. 2d 116, 146 (1997), overruled in part on other grounds People v. Coleman, 183 III. 2d 366

(1998); People v. Weatherspoon, 394 III. App 3d 89, 855 (2009). The decision to testify

ultimately rests with the defendant alone and is not considered to be a matter of trial strategy left

to trial counsel. People v. Brown, 336 111. App. 3d 711, 719 (2002). Although this decision is

made with the advice of counsel, only the defendant can determine whether or not to testify. Id.

Trial counsel's undue interference with defendant's right to testify can constitute ineffective

assistance of counsel if counsel refused to allow defendant to testify. See People v. Youngblood,

389 fll. App. .34 209, 217 (20.09). The dismissal of a postconviction claim that trial counsel was

ineffective for not allowing the defendant to testify must be affirmed unless the defendant made

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No. 1-14-2553

a" 'contemporaneous assertion *** of his right to testify' "during trial. Id (citing People V.

Brown, 54111. 2d 21, 24 (1973).

T 32

As an initial matter, the trial court concluded that defendant had forfeited his claim by

failing to raise it in his direct appeal. As a postconviction petition is a collateral attack on the trial

court proceedings and not an appeal from the judgment of conviction, "issues raised and decided

on direct appeal are barred by res judicata, and issues that could have been raised but were not

are forfeited." Tate, 2012 IL 112214, ¶ 8. A postconviction claim that depends on matters outside

the record is not ordinarily forfeited as claims outside the record cannot be brought on direct

appeal. Cf People v. Jones, 364 Ill, App. 3d 1, 5 (2005) C'[a]s petitioner's claim is based on

matters outside the record, waiver does not bar his ineffective assistance claims"). Here3

defendant's claim that he was deprived of his right to testify could not have been raised on direct

appeal because it is based on personal, off-the-record discussions between defendant and his trial

counsel. Thus, forfeiture does not prohibit consideration of his claim.

¶33

Turning to the merits of the postconviction petition, we find the trial court did not err in

summarily dismissing the petition. In the postconviction petition, defendant states "trial counsel

failed to call Defendant as a witness at trial which defendant told his counsel's [sic] to call him

as a witness trial counsel's [sic] refused to call defendant to testify." However, the petition is

silent as to when defendant had this discussion with counsel. A postconviction petition must

allege that defendant contemporaneously asserted his right to testify. People v. Enis, 194 111. 2d

361, 399-400 (2001). If a defendant expresses. his desire to testify prior to trial but then remains

silent when his counsel rests the case without calling him to testify, he is deemed to have

"acquiesced in counsel's view that defendant should not take the stand," Id at 399. Nowhere in

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the petition does defendant claim that, when the time came for him to testify at trial, he told his

lawyer that he wanted to testify, despite counsel's urging to the contrary. As his petition,

contains no allegation that he made any such assertion during trial, he has failed to state the gist

of a claim that his right to testify was violated by counsel. Youngblood, 389 M. App. 3d at 217.

¶34

The petition does not allege that, dining trial, defendant made an assertion of his right to

testify despite defendant's pretrial colloquy with the trial court, wherein the court fully explained

his right to testify and he told the court he would let it know if he wished to testify. Defendant

having failed to allege that he made a contemporaneous assertion of his right to. testify during his

trial, we find that dismissal of defendant's claim is proper. See Youngblood, 389 Ill. App. 3d at

217; People v. Thompkins, 161 M. 2d 148, 178 (1994) (" 'In the absence of a contemporaneous

assertion by the defendant of his right to testify, the trial judge properly denied an evidentiary

hearing.' "(quoting People v. Brown, 54111. 2d 21, 24 (1973))).

135

With respect to the prejudice prong of an ineffective assistance of 'counsel claim,

defendant argues that where there is an unrébutted allegation that defendant's right to testify was

violated, showing of arguable prejudice is unnecessary. We disagree. Our supreme court has

decided such cases 'on the prejudice prong alone, See Madej, 177 III. 2d at 146, overruled in part

on other grounds Coleman, 183 III. 2d at 388. We therefore may determine defendant's

ineffective assistance of counsel claim based upon the prejudice prong.

T 36

We cannot find that defendant was arguably prejudiced by his trial counsel's performance

and thus, affirm the dismissal of his postconiction petition on this basis as well. Defendant

argues that if he were called as a witness, he would testify that "Ms custodial statements were

false and coerced" and to the "circumstances under which those statements were made."

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No. 1-14-2553

Defendant then contends that, without the inculpatory statements, D.H. would be far less credible

to the trial court because her testimony was "fraught with inconsistencies." Defendant then

proceeds into a lengthy sufficiency of the evidence argument. This argument is unconvincing.

137 Defendant's argument that his custodial statements were "false and coerced" is.

conclusory and devoid of any supporting facts. SeePeople v. Delton, 227 Ill. 2d 247, 258 (2008)

(finding broad conclusory allegations are not permitted even at the first stage of the

proceedings). Further, even taking the other allegations in defendant's postconviction petition as

true and construing them liberally, it is unclear what defendant would have testified to at trial. In

his postconviction petition, he merely alleges, among other things, that "Detective Schmuck did

threaten and promises [sic] defendant something" and that "Detective Schmuck force [sic]

defendant into making a false statement doing [sic] interrogation."

1 38

Even liberally construing defendant's postconviction petition to infer he would testify to

this, these allegations are directly rebutted by the record. Schmuck testified that he did not

mistreat defendant during the interview. Further, Morrison testified that, outside the presence of

Schmuck, defendant told her no threats or promises were made to induce his statement.

Defendant also corrected and signed the written statement, wherein he indicated he was treated

"fine" by Schmuck and that his statement was given freely and voluntarily. Finally, defendant

never alleges that he would testify that he did not commit any of the actions giving rise to

criminal charges against him. Given the inadequacy of defendant's allegations and with the

allegations affirmatively rebutted by the record, we cannot say defendant was arguably

prejudiced by not testifying at trial.

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No. 144-2553

39

Defendant contends that, without his custodial statements, there is nothing to corroborate

D.H.'s testimony. He then proceeds to argue the sufficiency of the evidence by. noting D.H.'s

testimony is "fraught with inconsistencies" and "hard to believe," and recounts D.H.'s

conflicting testimony at trial. However, this is the same argument the trial court heard and

rejected at trial. Additionally, we held the following in defendant's direct appeal:

"Moreover, while defendant argues at length that his statement was the only evidence

against him other than D.H.'s own testimony," that testimony was sufficient to convict

him absent his statement so that there is no prejudice from the absence of a motion to

suppress. While defendant notes discrepancies and contradictions in D.H.'s testimony,

the trial court twice acknowledged them and found her a credible witness nonetheless.

While defendant argues that D.H.'s account was uncorroborated, there was some

corroboration in that she reported defendant's actions only when prompted by cousin.

Townsend finding her crying—circumstances that tend to weigh against the prospect that

she was "framing" defendant. Lastly, while no witness from the Hall home corroborated

the incidents described by D.H., she clearly testified that they occurred when everyone

else was asleep, that she made no noise during the incidents, and that defendant had put

his hand on her mouth to ensure so." People v. Phillips, 2014 IL App, (1st) 120662-U, 1.

27.

140

We therefore have already addressed defendant's contentions and determined that D.H.'s

testimony, standing alone, was sufficient to convict defendant.

141,

Lastly, defendant argues that People v. Brown, 336 fll. App. 3d 711(2002), and People

v. Dredge, 148 III. App. 3d 911(1986), control the case at bar. We disagree. Defendant notes

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that, in those cases, the postconviction petitions were remanded for further proceedings on the

defendants' mere claims that trial counsel violated their right to testify at trial, without

supporting affidavits attached. See Brown, 336 Ill. App. 3d at 715, 722; see Dredge, 148 III. App.

3d at 912, 913-14. However, neither Brown nor Dredge address the rule that a petition must state

the defendant contemporaneously raised his right to testify during trial. See Youngblood, 389 Ill.

App. 3d at 217.

142

Brown is also distinguishable in that the defendant's original petition admittedly

contained conclusory allegations on the ineffective assistance of counsel issue, but he filed it

with an explanation that an amended petition sufficiently raising the gist of a constitutional claim

would be forthcoming. Brown, 336 M. App. 3d at 720. An amended petition was filed but thi

court noted that it was unclear from the record whether the trial court "implicitly denied

petitioner's request to amend or simply refused to address it." Id. at 720-721. Given the

exculpatory nature of two affidavits from witnesses trial counsel did not call to testify as well as

the defendant's allegation that he also wanted to testify but was prevented from doing so,

information that was part of the amended petition. which the trial court did not consider, this

court found that the defendant's petition should move forward "[g]iven the rather unique

circumstances of this case." Id. The reasoning in Brown is inapplicable here.

1 43

In Dredge, the court acknowledged that the defendant's allegation that she was deprived

of her right to testify was unsworn and conclusory in nature. Dredge, 148 111. App. 3d at 913.

The court noted, however, that her petition was% verified and, "coupled with the fact that

defendant's allegation that she was deprived of her right to testify at her trial is uncontradicted by

anything appearing in the trial record," her petition sufficiently presented a. gist of a

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constitutional claim meriting further proceedings. Id. Here, the record shows that the court

extensively admonished defendant on his right to testify and pressed the importance of this

decision, which was defendant's alone to make. The court repeatedly told defendant to let it

know if he wanted to testify, even if his counsel remained silent on the issue, or the court would

assume defendant chose not to testify. Defendant agreed and responded that he understood. He

never informed the court that he, wanted to testify. We further note that more recent decisions

have questioned the validity of Dredge. See Youngblood, 389 111. App. 3d at 219 (declining to

follow Dredge); People v. Hernandei, 35111). App. 3d 28, 34 (20

. 09) (noting Dredge is suspect

in light of our supreme court's decision in People v. Collins, 202 III. 2d 59, 66-69 (2002)).

¶ 44 For the reasons set forth above, we affirm the judgment of the circuit court of Cook

County.

¶ 45 Affirmed.

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SUPREME COURT OF ILLINOIS

SUPREME COURT BUILDING

200 East Capitol Avenue

SPRINGFIELD, ILLINOIS 62701-1721

(217)782-2035

Robert Steven Hirschhorn

Office of the State Appellate Defender

203 N. LaSalle Street, 24th Floor

Chicago IL 60601

001:02 Z017

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!3;RIOT

FIRST DISTRICT OFFICE

160 North LaSalle Street, 20th Floor

Chicago, IL 60601-3103

(312) 793-1332

TDD: (312) 793-6185

September 27, 2017

In re:

People State of Illinois, respondent, v. James Phillips, petitioner.

Leave to appeal, Appellate Court, First District.

122369

The Supreme Court today DENIED the Petition for Leave to Appeal in the above

entitled cause.

The mandate of this Court will issue to the Appellate Court on 11/01/2017.

Very truly yours,

Clerk of the Supreme Court

24