No.

________

IN THE
SUPREME COURT OF ILLINOIS

PEOPLE OF THE STATE OF ILLINOIS, ) Original Petition for Writ of

ex rel. KWAME RAOUL, Illinois Attorney ) Mandamus/Prohibition
General, and JOSEPH H. McMAHON, )
Special Prosecutor and State’s Attorney of )
Kane County, Illinois, )
)
Petitioners, )
)
v. ) Underlying Case
) No. 17 CR 4286
THE HONORABLE VINCENT M. ) Circuit Court of Cook County
GAUGHAN, Circuit Judge of the Circuit )
Court of Cook County, and JASON VAN )
DYKE, ) The Honorable
) Vincent M. Gaughan,
Respondents. ) Judge Presiding.

MOTION FOR LEAVE TO FILE

PETITION FOR WRIT OF MANDAMUS OR PROHIBITION

Petitioners seek leave to file a petition for mandamus or prohibition pursuant

to Supreme Court Rule 381 and article VI, § 4(a) of the Illinois Constitution.

1. On October 5, 2018, a Cook County jury found respondent Jason Van Dyke

guilty of sixteen counts of aggravated battery with a firearm and one count of

second degree murder. SR165-70.1

1 “SR_” refers to the supporting record filed with this motion and proposed petition.
2. On January 18, 2019, respondent Judge Vincent Gaughan sentenced

Van Dyke to eighty-one months in prison on the second degree murder conviction

alone. SR245-47, 253.

3. Van Dyke’s sentence is unauthorized. In sentencing Van Dyke,

Judge Gaughan made two legal errors. First, contrary to clearly established law,

Judge Gaughan sentenced Van Dyke only on the second degree murder conviction,

concluding that second degree murder was the more serious offense “in this

particular case.” SR245. But People v. Lee, 213 Ill. 2d 218, 229-30 (2004), holds

that under the one-act, one-crime doctrine, a defendant convicted of both

aggravated battery with a firearm and second degree murder must be sentenced

only for aggravated battery with a firearm because it is, in every case, the more

serious offense.

4. Second, Judge Gaughan stated that, although he was not entering sentences

on the aggravated battery with a firearm convictions, were he to do so, “all those

shots were done within a range of anyplace from 14 to so many seconds, but less

than 30 seconds, at the most, so I consider that one act, so they would all merge.”

SR245. But People v. Crespo, 203 Ill. 2d 335, 344-45 (2001), holds that a separate

sentence on each conviction is required when the prosecution, through its charging

and argument, has made clear its intention to treat the defendant’s conduct —

there, the infliction of three stab wounds — as multiple acts. Here, the People

made clear that Van Dyke’s sixteen shots were distinct acts supporting multiple

2
convictions and sentences both by charging them as separate acts and in their

closing argument. SR9-24, 50-51.

5. Thus, under Lee and Crespo, Judge Gaughan was required to impose

sentence not on the second degree murder conviction, but instead on all sixteen

aggravated battery convictions.

6. “Mandamus is an appropriate remedy to compel compliance with mandatory

legal standards,” including compelling the undoing of an act. People ex rel. Birkett

v. Konetski, 233 Ill. 2d 185, 192-93 (2009). Prohibition is appropriate to prevent a

judicial act that is beyond the judge’s legitimate authority. People ex rel. Alvarez v.

Howard, 2016 IL 120729, ¶ 13. Because Judge Gaughan’s sentencing order is

unauthorized, a mandamus action appropriately asks this Court to order him to

correct it to conform to Illinois law. People ex rel. Alvarez v. Gaughan, 2016 IL

120110, ¶ 21. Alternatively, because Judge Gaughan lacked authority to sentence

Van Dyke for the less serious offense of second degree murder, prohibition is

appropriate as well. See Howard, 2016 IL 120729, ¶ 13.

7. For these reasons and those set forth in the proposed petition for a writ of

mandamus or prohibition, petitioners respectfully request that this Court issue an

order directing Judge Gaughan to (1) vacate his sentencing order, (2) impose

sentence on each of the sixteen aggravated battery with a firearm convictions, and

(3) determine which of the aggravated battery with a firearm convictions involved

“severe bodily injury” warranting consecutive sentences, see 730 ILCS 5/5-8-4(d)(1).

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 Respectfully submitted,

KWAME RAOUL
Attorney General of Illinois
100 West Randolph Street, 12th Floor
Chicago, Illinois 60601-3218
(312) 814-2232
eserve.criminalappeals@atg.state.il.us

JOSEPH H. McMAHON
Special Prosecutor and
State’s Attorney of Kane County
37W777 Route 38, Suite 300
St. Charles, Illinois 60175
(630) 232-3500
jm@co.kane.il.us

DAVID L. FRANKLIN
Solicitor General

MICHAEL M. GLICK
Criminal Appeals Division Chief

By: /s/ Leah M. Bendik

LEAH M. BENDIK
Assistant Attorney General

/s/ Brian McLeish

BRIAN McLEISH
Assistant Attorney General

/s/Michelle Katz
MICHELLE KATZ
Assistant State’s Attorney

4
 VERIFICATION BY CERTIFICATION

Under penalties as provided by law pursuant to Section 1-109 of the Code of

Civil Procedure, the undersigned certifies that the statements set forth in this

instrument are true and correct, except as to matters therein stated to be on

information and belief and as to such matters the undersigned certifies as

aforesaid that she verily believes the same to be true.

/s/ Leah M. Bendik

Assistant Attorney General
 No. ________

IN THE
SUPREME COURT OF ILLINOIS

PEOPLE OF THE STATE OF ILLINOIS, ) Original Petition for Writ of

ex rel. KWAME RAOUL, Illinois Attorney ) Mandamus/Prohibition
General, and JOSEPH H. McMAHON, )
Special Prosecutor and State’s Attorney of )
Kane County, Illinois, )
)
Petitioners, )
)
v. ) Underlying Case
) No. 17 CR 4286
THE HONORABLE VINCENT M. ) Circuit Court of Cook County
GAUGHAN, Circuit Judge of the Circuit )
Court of Cook County, and JASON VAN )
DYKE, ) The Honorable
) Vincent M. Gaughan,
Respondents. ) Judge Presiding.

ORDER

This matter coming to be heard on the motion of petitioners for leave to file
petition for mandamus or prohibition, the motion is hereby ALLOWED / DENIED.

DATED: _____________________ ENTER: ___________________________

JUSTICE

LEAH M. BENDIK
Assistant Attorney General
100 West Randolph St., 12th Floor
Chicago, Illinois 60601-3218
(312) 814-5029
Eserve.criminalappeals@atg.state.il.us
Counsel for Petitioners
 PROOF OF FILING AND SERVICE

Under penalties as provided by law pursuant to 735 ILCS 5/1-109, the

undersigned certifies that the statements set forth in this instrument are true and
correct. On February 11, 2019, the foregoing Motion For Leave to File Petition
for a Writ of Mandamus or Prohibition, which complies with the proposed-
order requirement of Supreme Court Rule 361(b)(2), was electronically filed with
the Clerk, Illinois Supreme Court, and served upon the following by email:

Daniel Herbert The Honorable Vincent Gaughan

Herbert Law Firm Judge, Circuit Court of Cook County
206 South Jefferson, Suite 100 2600 South California Avenue
Chicago, Illinois 60661 Chicago, Illinois 60608
dan.herbert@danherbertlaw.com Amber.Hunt@cookcountyil.gov

Darren O’Brien Jennifer Blagg

P.O. Box 2372 1333 West Devon Avenue
Orland Park, Illinois 60462 Suite 267
dobrien57@comcast.net Chicago, Illinois 60660
jennifer@blagglaw.net

/s/ Leah M. Bendik

Counsel for Petitioners