Our panel of leading appellate attorneys reviews the two Illinois Supreme Court opinions handed down Thursday, March 18. In People v. Burge, the Supreme Court denied a defendant’s motion to withdraw her guilty plea after she asserted that it was involuntary because she was unaware she would lose her job if she pled guilty. In Ciolino v. Simon, a defamation case that arose from a documentary about an exoneration scandal, the Supreme Court considered whether the one-year window when the suit could be filed opened when the movie premiered at a publicized film festival.
By Kerry J. Bryson, Office of the State Appellate Defender
In 2017, Chaleah Burge entered a fully negotiated guilty plea to a charge of theft and was sentenced to a term of 12 months of conditional discharge. The factual basis for the theft charge was that Burge took money from a client’s purse while working as a home health care provider. She subsequently sought to withdraw her plea, asserting that it was involuntary because she was unaware she would lose her job if she pled guilty.
Supreme Court Rule 402 requires that prior to accepting a plea of guilty, the court admonish the defendant of the nature of the charge, the sentencing range, the right to persist in a plea of not guilty, and that a plea waives the right to trial and to be confronted with the witnesses against him or her. Separately, 725 ILCS 5/113-4, requires certain additional admonishments, including that there may be consequences on the defendant’s ability to retain or obtain employment. At issue before the Supreme Court was whether that admonishment was required to be given at the time of Burge’s guilty plea or whether that admonishment is only required where a defendant pleads guilty “at arraignment.”
Section 113-4 is titled, “Plea,” and is included in Article 113 of the Code of Criminal Procedure, titled “Arraignment.” Subsection 113-4(a) states that “When called upon to plead at arraignment,” the defendant must be provided a copy of the charge and “shall plead guilty, guilty but mentally ill, or not guilty.” The admonishment in question is contained in Section 113-4(c), which states that a guilty plea shall not be accepted until the court has provided admonishments on various collateral consequences of pleading guilty. Subsection (c) does not contain language limiting it to arraignment.
Looking at the plain language of the statute and the statutory scheme as a whole, the Court concluded that subsection (a) is a “general provision that sets the scope for the remainder” of the statute, and the admonishments in subsection (c) are required only when a defendant pleads guilty at arraignment. Other provisions in the statute define the procedure if a defendant stands silent, pleads guilty but mentally ill, or pleads not guilty.
The Supreme Court noted that in subsection (e), discussing the procedure when a defendant pleads not guilty, the statute specifically provides that the court shall warn the defendant about the possibility of trial in absentia “at that time or at any later court date on which he is present.” This language demonstrates that the legislature knew how to express its intent that a particular provision not be limited to arraignment. Given the absence of such language in subsection (c), and considering the statute as a whole, the Court concluded that the legislature intended the subsection (c) admonishments be required where a defendant pleads guilty at arraignment.
Further, a separate statute—725 ILCS 5/115-2—governs the acceptance of guilty pleas before or during trial. If Section 113-4(c) applied to all pleas, there would be no need for Section 115-2. And, the more detailed admonishments required by Section 113-4(c) provide safeguards to defendants who plead guilty at arraignment, often without having had the ability to consult with counsel.
Apart from the statutory argument, the Supreme Court also rejected Burge’s argument that a manifest injustice occurred when she pled guilty without understanding that she would lose her employment as a result of the plea. Loss of employment is a collateral consequence, and due process does not require that a defendant be advised of collateral consequences prior to pleading guilty. Also, under the specific facts here, the court held that Burge should have known, as a matter of common sense, that her employment would be at risk where her theft charge was based on stealing from one of her clients during the course of her employment.
The Supreme Court affirmed the denial of Burge’s motion to withdraw her guilty plea.
Ciolino v. Simon, 2021 IL 126024
By Karen Kies DeGrand, Donohue Brown Mathewson & Smyth LLC
The parties framed the question before the Illinois Supreme Court in this defamation and false light invasion of privacy action as whether the one-year statute of limitations and the single-publication rule barred plaintiff’s action, or the discovery rule defeated defendant’s motion to dismiss. The Supreme Court held that plaintiff timely filed his action, but not based on the arguments offered by either side or the reasoning of the appellate court.
Writing for the court, Justice Rita Garman directed readers to the appellate court decision, 2020 IL App (1st) 190181, rather than fully delve into the extensive background of the dispute giving rise to plaintiff Paul Ciolino’s defamation and related claims against attorney Terry Ekl and others not involved in the Supreme Court appeal. The matter is rooted in the successful efforts of the Innocence Project of Northwestern University’s Medill School of Journalism to challenge Anthony Porter’s murder conviction. The court noted that the highly publicized Porter exoneration prompted former Governor George Ryan to call for a moratorium on Illinois’ death penalty. Ciolino, a private investigator for the Innocence Project, obtained a videotaped confession to the murders from another individual, Alstory Simon. Simon pleaded guilty and received a long prison sentence.
Ekl became involved when Simon sought postconviction relief. Simon’s defense was revived with evidence that two witnesses who had implicated Simon recanted their statements. They reported that David Protess of the Innocence Project induced their testimony against Simon. Anita Alvarez, then the Cook County State’s Attorney, revisited the case and ultimately abandoned all charges against Simon. The circuit court vacated Simon’s convictions after he had served 15 years in prison.
Simon filed a federal civil rights lawsuit for malicious prosecution against Ciolino, Northwestern University, Protess, and Jack Rimland, an attorney who shared office space with Ciolino and allegedly convinced Simon to plead guilty. William Crawford authored an account of Simon’s travails; Crawford wrote that the Innocence Project, with the assistance of Ciolino, framed Simon to secure Porter’s release toward the goal of ending the death penalty in Illinois. The story in Crawford’s book led to the documentary that is at issue: “Murder in the Park,” which recounts the theory that Ciolino engaged in criminal conduct to obtain Simon’s conviction. Among other critics of Ciolino, in the film Ekl commented on Ciolino’s conduct.
Asserting his position that Ekl and others were motivated to discredit the Innocence Project and the wrongful conviction project, Ciolino countersued Simon in his federal lawsuit and brought Ekl and other defendants into the case. After the federal counterclaim was dismissed for lack of supplemental jurisdiction, Ciolino relocated his lawsuit to the circuit court of Cook County. As to Ekl, the circuit court granted his motion to dismiss based on timeliness and other grounds. Finding a question of fact as to whether the statute of limitations was tolled until Ciolino knew or should have known that “Murder in the Park” published allegedly defamatory material, the appellate court reversed the circuit court’s ruling in Ekl’s favor.
In the Supreme Court, Ekl argued that the one-year statute of limitations barred Ciolino’s action because, more than one year before the date Ciolino’s state court action was deemed to be filed under the Illinois saving statute, “Murder in the Park” first was shown in New York at a documentary film festival open to the public and advertised in a variety of media outlets. Based on the Uniform Single Publication Act, 740 ILCS 165/1 (West 2016), which codifies the “single-publication rule,” Ekl urged the Supreme Court to reject Ciolino’s discovery rule argument. Citing a 1948 appellate decision, Winrod v. Time, Inc., 334 Ill. App. 59 (1948), the “foremost Illinois case examining the single publication rule,” the Supreme Court explained that the single publication rule provides that a cause of action for defamatory material published via large distribution accrues upon the first publication of the material. Ciolino assumed the rule applied, but contended that he did not know of Ekl’s statements in “Murder in the Park” at the time of the isolated screening in New York; he learned of the contents of the statements when the documentary aired on Showtime within the statutory time frame. At the earliest, Ciolino argued, he could be charged with discovery of “Murder in the Park” when it was screened in Chicago, less than one year before the date of filing.
The Supreme Court ultimately did not resolve the parties’ dispute concerning the interplay between the single-publication rule and the discovery rule. Citing the Restatement (Second) of Torts, section 577A, the court distinguished material that is mass-published to the public, with delayed receipt that is incidental to the widespread mode of distribution, from situations where material is separately published and intended to reach different groups of the public. Here, after the New York showing to a limited audience, the film was republished in other venues and intended to reach different audiences. The court concluded that the Chicago showing of the documentary was a separate publication that did not fall within the single-publication rule. Ciolini timely filed his complaint against Ekl within one year of the Chicago screening.