{ "id": 872499, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES MOFFAT, Defendant-Appellant", "name_abbreviation": "People v. Moffat", "decision_date": "1994-06-16", "docket_number": "No. 1-92-2700", "first_page": "469", "last_page": "473", "citations": [ { "type": "official", "cite": "265 Ill. App. 3d 469" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "105 Ill. 2d 275", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3142311 ], "opinion_index": 0, "case_paths": [ "/ill-2d/105/0275-01" ] }, { "cite": "71 Ill. 2d 166", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5448796 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/ill-2d/71/0166-01" ] }, { "cite": "125 Ill. 2d 100", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5554681 ], "opinion_index": 0, "case_paths": [ "/ill-2d/125/0100-01" ] }, { "cite": "124 Ill. App. 3d 761", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3429522 ], "weight": 2, "pin_cites": [ { "page": "765" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/124/0761-01" ] }, { "cite": "141 Ill. App. 3d 1090", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3497610 ], "pin_cites": [ { "page": "1100-01" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/141/1090-01" ] }, { "cite": "145 Ill. App. 3d 571", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3536882 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/145/0571-01" ] }, { "cite": "122 Ill. 2d 176", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5550081 ], "pin_cites": [ { "page": "201" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/122/0176-01" ] }, { "cite": "466 U.S. 668", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6204802 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/466/0668-01" ] }, { "cite": "129 Ill. 2d 265", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5567220 ], "pin_cites": [ { "page": "284" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/129/0265-01" ] }, { "cite": "143 Ill. 2d 501", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5592134 ], "pin_cites": [ { "page": "510" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/143/0501-01" ] }, { "cite": "142 Ill. 2d 140", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3236844 ], "pin_cites": [ { "page": "146" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/142/0140-01" ] }, { "cite": "122 Ill. 2d 367", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5549914 ], "pin_cites": [ { "page": "376" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/122/0367-01" ] }, { "cite": "196 Ill. App. 3d 1047", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2489660 ], "pin_cites": [ { "page": "1051-52" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/196/1047-01" ] }, { "cite": "136 Ill. 2d 550", "category": "reporters:state", "reporter": "Ill. 2d", "opinion_index": 0 }, { "cite": "202 Ill. App. 3d 43", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2587185 ], "weight": 5, "year": 1990, "pin_cites": [ { "page": "53-54" }, { "page": "56" }, { "page": "56-57" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/202/0043-01" ] } ], "analysis": { "cardinality": 475, "char_count": 9114, "ocr_confidence": 0.767, "pagerank": { "raw": 6.323771877050585e-08, "percentile": 0.38876378507009485 }, "sha256": "e2dc51e4a9de53d6dd304e4c8e068422768352047cd065c02e97780b53026315", "simhash": "1:8baa0c24f7c811dc", "word_count": 1487 }, "last_updated": "2023-07-14T21:16:00.157691+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES MOFFAT, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE JOHNSON\ndelivered the opinion of the court:\nAfter a bench trial in the circuit court of Cook County, defendant, James Moffat, was convicted of eight counts of indecent liberties with a child and 16 counts of official misconduct. He was sentenced to concurrent prison terms of 15 and 5 years, respectively. In People v. Moffat (1990), 202 Ill. App. 3d 43, this court affirmed defendant\u2019s convictions and sentence except as to two counts of indecent liberties with a child and two counts of official misconduct. Subsequently, the Illinois Supreme Court denied defendant\u2019s request for leave to appeal. People v. Moffat (1990), 136 Ill. 2d 550.\nDefendant filed a petition for post-conviction relief under the Illinois Post-Conviction Hearing Act. (Ill. Rev. Stat. 1989, ch. 38, par. 122 \u2014 1 et seq.) The trial court granted the State\u2019s motion to dismiss defendant\u2019s petition without an evidentiary hearing. Defendant now appeals the dismissal of his petition, alleging that he was denied the effective assistance of counsel on appeal because his counsel failed to (1) argue that the trial court\u2019s ex parte communication violated Supreme Court Rule 63(a)(4) (134 Ill. 2d R. 63(a)(4)), and (2) raise any issue concerning the running of the statute of limitations with respect to the bill of particulars.\nWe affirm.\n\u20221 The facts underlying defendant\u2019s convictions are recited in this court\u2019s opinion in People v. Moffat (1990), 202 Ill. App. 3d 43. Therefore, we need not restate the evidence presented at trial but shall only address the arguments presently before this court. In so doing, we note that defendant\u2019s arguments \u2014 that the trial court was biased against him and that the ex parte communication was innately unfair \u2014 are waived and are not properly before this court, given defendant\u2019s failure to cite any relevant authority in support thereof. People v. Cruz (1990), 196 Ill. App. 3d 1047, 1051-52.\n\u20222 We also recognize that defendant seeks to challenge the sufficiency of the evidence and the credibility of the witnesses by contesting the variance between the proof at trial and the charges against him in both the bill of particulars and the indictment, as well as the circumstances of the administrative hearing conducted by the board of education. However, these issues were considered by this court on defendant\u2019s direct appeal and, therefore, are res judicata. (Moffat, 202 Ill. App. 3d at 53-54; People v. Free (1988), 122 Ill. 2d 367, 376.) Likewise, all issues that were raised, or could have been raised, on defendant\u2019s direct appeal are res judicata and cannot be presented in a post-conviction petition for relief or a denial of the petition. (People v. Neal (1990), 142 Ill. 2d 140, 146.) In the present case, no dispute exists that defendant\u2019s appellate counsel failed to raise any issue concerning either the alleged violation of Rule 63(a)(4) or the running of the statute of limitations with respect to certain offenses. However, defendant claims that counsel was ineffective for failing to do so. Thus, he contends that he is entitled to post-conviction relief and that the trial court improperly dismissed his petition.\nTo be entitled to relief under the Post-Conviction Hearing Act (Ill. Rev. Stat. 1989, ch. 38, par. 122 \u2014 1 et seq.), defendant must show that his constitutional rights were substantially violated (People v. Eddmonds (1991), 143 Ill. 2d 501, 510). The trial court determines whether defendant has made the requisite showing, and its decision will not be disturbed on review unless it is manifestly erroneous. (People v. Del Vecchio (1989), 129 Ill. 2d 265, 284.) In the present case, the trial court determined that defendant failed to meet his burden of proving a substantial constitutional violation and dismissed the petition. We must consider whether the trial court\u2019s determination was manifestly erroneous.\nIn this appeal, defendant first claims that on direct appeal, counsel was ineffective for failing to raise and properly argue that the trial court\u2019s ex parte communication violated Rule 63(a)(4), which provides that no judge may engage in ex parte communications concerning a pending matter or proceeding. (134 Ill. 2d R. 63(a)(4).) At the hearing on defendant\u2019s motion for a new trial, the trial court stated on the record that he had spoken with his son, an assistant State\u2019s Attorney, the previous night. Defendant insists that the ex parte communication violated Rule 63(a)(4) and that counsel was ineffective for failing to raise this issue on appeal.\nTo prevail on an ineffective assistance of counsel claim, defendant must show that (1) counsel\u2019s performance fell below that required by the sixth amendment, and (2) he was substantially prejudiced by counsel\u2019s deficient performance. (People v. Albanese (1988), 125 Ill. 2d at 106; see also Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052.) To establish prejudice, defendant must show that but for counsel\u2019s inadequate representation the results of trial would have been different. (Albanese, 125 Ill. 2d at 106.) If defendant cannot show he was sufficiently prejudiced, then the court need not determine whether counsel\u2019s performance was deficient. People v. Enoch (1988), 122 Ill. 2d 176, 201.\n\u20223 Based on our review of the record, we cannot say that the trial court erroneously determined that defendant failed to prove he was prejudiced by counsel\u2019s failure to argue the alleged violation of Rule 63(a)(4). No evidence suggests that during the conversation with his son, the trial judge spoke about the merits of defendant\u2019s pending post-trial motion. In fact, on defendant\u2019s direct appeal, we reasoned that defendant failed to demonstrate he was prejudiced by the ex parte communication or that the communication was unfair. People v. Moffat (1990), 202 Ill. App. 3d 43, 56.\nMoreover, nothing in the evidence suggests that the trial judge was somehow influenced by the ex parte communication or his son\u2019s presence in the courtroom. (See Moffat, 202 Ill. App. 3d at 56-57; see also People v. Rios (1986), 145 Ill. App. 3d 571 (wherein the court held that the trial court\u2019s ill-advised ex parte communication, which played no role in its decision, did not deprive defendant of a fair trial).) Since defendant cannot demonstrate that he suffered any prejudice from the ex parte communication, we remain convinced that even had counsel raised the alleged violation of Rule 63(a)(4), the outcome on appeal would not have been different.\n\u20224 Defendant next contends that his counsel was ineffective for failing to argue the running of the statute of limitations regarding the bill of particulars. Defendant claims that the . evidence at trial was so far at variance with the charges that some of the conduct of which he was convicted may have occurred outside the three-year statute of limitations period. Since counsel failed to raise this argument on appeal, it is res judicata (People v. Bailey (1986), 141 Ill. App. 3d 1090, 1100-01), unless we were to agree with defendant that counsel was ineffective for failing to do so. Following our careful review of the record, however, we find defendant\u2019s argument to be clearly erroneous.\nIn People v. Steele (1984), 124 Ill. App. 3d 761, we reasoned that it is the indictment, not the bill of particulars, which is the charging instrument. (Steele, 124 Ill. App. 3d at 765.) In the case at bar, the indictments were returned on October 7, 1985, and the earliest date of occurrence of any act for which defendant was convicted was October 15, 1982. Hence, all of the criminal acts of which defendant was convicted occurred within the three-year limitations period. We hold that defendant suffered no prejudice by counsel\u2019s failure to raise any issue concerning the limitations period and, therefore, his claim of ineffectiveness of counsel must fail. See People v. Albanese (1988), 125 Ill. 2d 100.\nIn sum, we conclude that defendant was in no way prejudiced by counsel\u2019s failure to raise on appeal any issue concerning either Rule 63(a)(4) or the limitations period with respect to the bill of particulars. Thus, the trial court\u2019s determination that defendant did not make the required showing of a substantial constitutional violation was not manifestly erroneous. Therefore, we hold that the trial court properly dismissed defendant\u2019s petition for post-conviction relief.\nFor the foregoing reasons, the judgment of the trial court is affirmed. As part of our judgment, we grant the State\u2019s request that defendant be assessed $75 as costs and fees for this appeal, pursuant to People v. Nicholls (1978), 71 Ill. 2d 166, and People v. Agnew (1985), 105 Ill. 2d 275.\nAffirmed.\nHOFFMAN, P.J., and CAHILL, J., concur.", "type": "majority", "author": "JUSTICE JOHNSON" } ], "attorneys": [ "Ronald S. Cope, of Ancel, Clink, Diamond, Cope & Bush, P.C., of Chicago, for appellant.", "Jack O\u2019Malley, State\u2019s Attorney, of Chicago (Renee Goldfarb and James S. Veldman, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES MOFFAT, Defendant-Appellant.\nFirst District (4th Division)\nNo. 1\u201492\u20142700\nOpinion filed June 16, 1994.\nRonald S. Cope, of Ancel, Clink, Diamond, Cope & Bush, P.C., of Chicago, for appellant.\nJack O\u2019Malley, State\u2019s Attorney, of Chicago (Renee Goldfarb and James S. Veldman, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0469-01", "first_page_order": 489, "last_page_order": 493 }