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State Crimes

To effectively fight felony or misdemeanor charges in the State of Illinois, you need an attorney with the experience and skill to attack every aspect of the State’s case. A successful defense can often begin at the time of arrest with the attorney arriving at the police station before any incriminating statements can be made.  The attorney should demand to see his client and advise him of his right to counsel and right to remain silent. If someone is charged with a felony, the right attorney can often times secure his/her freedom at bond court by obtaining a reasonable bond amount. Preliminary hearings, or probable cause hearings, are another opportunity to beat a criminal case at its inception. The preliminary hearing is a valuable opportunity for an experienced attorney to cross-examine police officers, laying the groundwork to later have evidence suppressed at a Motion to Quash or to beat the case at trial. Prior to trial, many cases call for different types of pre-trial motions to be filed, including: Motions to Quash Arrest and Suppress Evidence; Motions to Quash Search Warrants; Motions to Suppress Identifications; Motions to Suppress Statements, among others. Keeping your freedom can also depend on your attorney’s familiarity with the prosecutors and judges involved in your case. Most important is your attorney’s ability to actually litigate or fight cases at bench trials, jury trials and hearings on pre-trial motions. Jury selection and voir dire examination of prospective jurors is another important skill. Those abilities come from experience gained from being in the courtroom every day. John McNamara has been doing just that since 1995. He has obtained findings of Not Guilty time and time again for clients charged with the whole range of criminal offenses, including:

Murder

Attempt First Degree Murder

Aggravated Kidnapping

Aggravated Battery with a Firearm

Aggravated Criminal Sexual Assault

Home Invasion

Armed Robbery

Armed Violence

Second Degree Murder

Criminal Sexual Assault

Residential Burglary

Aggravated Discharge of a Firearm

Kidnapping

Robbery

Burglary

Involuntary Manslaughter

Aggravated Battery

Intimidation

Aggravated Stalking

Unlawful Use of Weapon by Felon (UUW)

Unlawful Restraint

Aggravated Unlawful Use of Weapon

Individual criminal charges can be located at:
INDIVIDUAL CRIMINAL CHARGES

Possession of Controlled Substance with Intent to Deliver (Narcotic/Drug Cases); Delivery of a Controlled Substance; Possession of Cannabis; Criminal Drug Conspiracty

Many of the seizures of cocaine, heroin or other controlled substances occur as a result of police stopping and searching individuals on the street or in vehicles.  At a hearing on a pre-trial Motion to Quash Arrest and Suppress Evidence, a skilled attorney can show that an officer did not have probable cause to make a stop and search , which can result in charges being dropped.

Seizures of narcotics and marijuana can also arise out of what is known as a “Terry Stop” or “stop and frisk.” Pursuant to Terry v. Ohio, 982 U.S. 1 (1968), before an officer can conduct a carefully limited search of the outer clothing of a person, the officer must first observe unusual conduct that leads to a reasonable conclusion that criminal activity is afoot and the person may be armed and dangerous. In court, an aggressive attorney can attack a police officer on the issues of whether he had a reasonable suspicion that a defendant had committed or was about to commit a crime (justifying an investigatory stop), and whether the officer could reasonably infer that a defendant was armed and dangerous (justifying a limited search for weapons).  By demonstrating that an officer’s stop, search and seizure of an arrestee was not justified, a good attorney can get evidence suppressed, regardless of the quantity of drugs.

Motion to Quash Search Warrant

Drugs are often recovered as a result of police raiding a home while executing a search warrant.  The pre-trial Motion to Quash Search Warrant challenges whether probable cause existed for the search warrant to be issued in the first place.  Whether the execution of the search warrant, or raid, was carried out properly or if officers exceeded the scope of the warrant is another method of getting evidence suppressed and charges dropped.

Proof of Possession; Actual Possession and Constructive Possession

To prove possession of narcotics, the State must prove that the defendant had knowledge of the presence of the narcotics and the narcotics were in the immediate control or possession of the defendant.

Constructive Possession exists where there is an intent and a capability to maintain control and dominion over the narcotics and may be proved by showing that the defendant controlled the premises where the narcotics were found.

Intent to Deliver

Factors to consider regarding an intent to deliver include:

1. The amount of drugs possessed (i.e., more than that likely to be used for personal consumption);
2. Possession of a combination of drugs;
3. The manner in which the drugs are kept;
4. The presence of paraphernalia used in the sale of drugs (i.e., scales, packaging materials);
5. The presence of large amounts of cash;
6. The presence of weapons.

The  Criminal Drug Conspiracy charge alleges that a person agreed with another to the commission of a drug related offense and that an act in furtherance of the agreement was committed.

Some of the most common drug-related offenses are Possession of a Controlled Substance with Intent to Deliver, Delivery of Controlled Substance (720 ILCS 570/401) and simple Possession of a Controlled Substance (720 ILCS 570/402). The pertinent sections of the Illinois Controlled Substances Act can be found at Illinois Compiled Statutes

The particular class felony is determined by the type and quantity of the drugs seized.

The Cannabis Control Act (720 ILCS 550) enumerates the offenses of Possession of Cannabis with Intent to Deliver, Delivery of Cannabis (720 ILCS 550/5) and simple Possession of Cannabis (720 ILCS 550/4) as well as Cannabis Trafficking (720 ILCS 550/5.1) and related offenses. Pertinent sections of the Cannabis Control Act can be found at Illinois Compiled Statutes

 

Sentencing

Probation: The maximum term of probation allowable under law for Class 1 and Class 2 felonies is 48 months felony probation. The maximum term of probation for Class 3 and Class 4 felonies is 30 months.

Sentencing Range Based on Classification of the Most Common Offenses.

Class X Felony: 6 to 30 years
Class 1 Felony: 4 to 15 years
Class 2 Felony: 3 to 7 years
Class 3 Felony: 2 to 5 years
Class 4 Felony: 1 to 3 years

Probation

Non-probationable Felonies

Certain felony offenses are non-probationable. Under 730 ILCS 5/5-5-3(c)(2)(F), a defendant is NOT eligible for probation on a Class 2 or greater felony if the defendant has been convicted of a Class 2 or greater offense within ten (10) years of the date on which he committed the offense for which he is being sentenced. Every Class X felony is non-probationable. The charge of Possession with Intent to Deliver of Delivery of a Controlled Substance of greater than five (5) grams of cocaine is a non-probationable Class 1 felony. The charges of Possession with Intent to Deliver or Delivery of a Controlled Substance within 1,000 feet of school, park, church or CHA building are also non-probationable.

TASC Probation 20 ILCS 301/40-5

Certain individuals charged with felony offenses may qualify for a special type of probation that is designed to treat those with substance abuse problems. It is essentially a form of probation that includes substance abuse treatment and can be utilized in some circumstances to obtain probation for a person who is otherwise non-probationable. After successful completion of the treatment and the term of probation, the person can file a motion asking the Court to vacate the felony conviction and dismiss the criminal proceedings against him.  A person is eligible for TASC Probation unless:

1. The crime is a crime of violence;
2. The person is charged with Possession with Intent to Deliver or Delivery of a Controlled Substance and has previously been convicted of a non-probationable felony or is otherwise non-probationable;
3. The person has a record of two or more convictions of a crime of violence;
4. The person has other felony charges pending against him;
5. The person is already on probation or parole and the appropriate probation or parole authority does not consent to TASC probation;
6. The person was admitted to a designated program on two prior occasions within any consecutive two year period;
7. The person has been convicted of residential burglary and had a record of one or more felony convictions;
8. The crime is a reckless homicide.

Extended Sentence

Pursuant to 730 ILCS 5/5-8-2, a judge may impose an “extended sentence” when a defendant is convicted of any felony, after having been convicted in Illinois or any other jurisdiction of the same or similar class felony or greater class felony, when such conviction has occurred within ten (10) years after the previous conviction.

Any person convicted of a second or subsequent conviction under the Illinois Controlled Substances Act 720 ILCS 570/408 may be sentenced to imprisonment for a term up to twice the maximum term otherwise authorized. For example, if a person has a prior conviction for Possession of Controlled Substance and has a new charge of a Class 1 Possession of Controlled Substance with Intent to Deliver, the new charge could carry a sentencing range of four (4) to thirty (30) years instead of the 4 to 15 years which is the typical Class 1 sentencing.

Class X Enhancement; Mandatory X

When a defendant, over the age of 21 years, is convicted of a Class 1 or Class 2 felony, after having been twice convicted of any Class 2 or greater felonies in Illinois, such defendant shall be sentences as a Class X offender (Six (6) to thirty (30) years) in the Illinois Department of Corrections.

Concurrent and Consecutive Sentences: Bond on Bond Cases; Sentences “running wild”

Concurrent sentences for more than one case are sentences that are served at the same time and run simultaneously. For example, a person with two felony cases, who received a sentence of one year on each of them to run “concurrent,” would serve only one year.

Under 730 ILCS 5/5-8-4, if a person charged with a felony commits a separate felony while on pre-trial release (bond) or in pre-trial detention, the sentences imposed upon conviction of these felonies shall be served consecutively, or one after the other and not at the same time.  For example, if someone was charged with a felony, posted bond and then was arrested and charged with a new felony committed while on bond, the  sentences for those cases would run consecutively, or one on top of the other and not at the same time.

Boot Camp; Impact Incarceration

An alternative to a typical sentence of incarceration is commonly referred to as Boot Camp.  The defendant is sentenced to a term of imprisonment with a recommendation for Boot Camp. The program is usually a 120 day (4 month) stay at the correctional facility. To be eligible for Boot Camp, a person must:

1. Be older than 17 and not older than 35 years of age;
2. Have never been sentenced to Boot Camp before;
3. Have not served more than one prior period of incarceration for a felony;
4. Be sentenced to a term of imprisonment of eight (8) years or less;
5. Never have been convicted of a Class X felony;
6. Be physically able to perform strenuous physical activities;
7. Not have a mental disorder or disability that would prevent participation;
8. Consent in writing to participate in the program.

If a person fails to successfully complete the program, he is transferred to general population to serve the remainder of the felony sentence.

Inmates at the Cook County Jail can be located at: Cook County Jail

Inmates in federal custody can be located at: Federal Bureau of Prisons: Inmate Locator