NO. 5-02-0371

THE

JUSTICE MAAG delivered the opinion of the court:

The defendant, David Keller, appeals the dismissal of his postconviction petition. Thedefendant filed a motion for reconsideration, and the circuit court denied the motion. The defendant filed a timely notice of appeal. We reverse and remand.

The relevant facts are as follows. A jury found the defendant guilty of first-degreemurder and attempt (armed robbery) on September 24, 1993. On October 21, 1993, thecircuit court extended the time for filing posttrial motions until a transcript of the trial hadbeen prepared. The defendant was sentenced to 35 years' imprisonment for first-degreemurder and 10 years' imprisonment for attempt (armed robbery). At the conclusion of thehearing, the circuit court informed the defendant of his right to appeal.

On March 24, 1994, the defendant filed a motion for the modification of his sentence. On June 9, 1994, the defendant filed a motion for a new trial. On June 17, 1994, the circuitcourt denied the defendant's motion for a new trial. On April 11, 1996, the circuit courtmodified the defendant's sentence for first-degree murder to 30 years' imprisonment. Throughout all of the foregoing proceedings, the defendant was represented by attorneyThomas Hildebrand. The defendant did not file a direct appeal to this court.

On July 23, 1999, the defendant filed a pro se petition for postconviction relief. Inthe petition, the defendant alleged that at the sentencing hearing, he had told Hildebrand thathe wanted to appeal. Hildebrand allegedly assured the defendant and his mother thatHildebrand would perfect the appeal. Many months later, the defendant asked his motherto contact Hildebrand because he had not heard from him. Hildebrand allegedly told thedefendant's mother that he was working on the appeal and that the appeal would take threeto four years. In the early part of 1999, the defendant's mother learned from the clerk of thecourt that Hildebrand had never filed a notice of appeal.

The circuit court appointed attorney John Delaney to represent the defendant in thepostconviction proceedings. Delaney then filed an amended petition for postconvictionrelief. He reiterated the defendant's claim about Hildebrand not appealing his case. TheState did not respond to the petition or move to dismiss it. The court held a hearing on thepetition. The colloquy between the court and Delaney was as follows:

"THE COURT: *** [M]y understanding is *** that contingent upon the Courtre[]establishing Mr. Keller's appellate rights in this case, you are going to withdrawthe post[]conviction petition and amend the post[]conviction petition. Is that correct?

MR. DELANEY: Correct, Your Honor.

THE COURT: *** [I]n reviewing all of the court files and transcripts, *** weprobably don't have to reach the issues in your post[]conviction petition because theywill be cured by what I am going to do here in a second; and that is, upon review ofthe transcripts, it looks like while you were advised of your rights at one time, youwere not advised of your rights at the completion of the proceedings. So, I am goingto do that today and start your thirty days for filing of the Notice of Appeal."

The court then ordered the clerk to file a notice of appeal for the defendant, and the clerk did so. The defendant then withdrew his postconviction petition.

This court then dismissed the defendant's appeal because it was not timely filed. People v. Keller, No. 5-99-0818 (2001) (unpublished order under Supreme Court Rule 23(166 Ill. 2d R. 23)). This court also stated that the circuit court cannot extend the time to filea notice of appeal pursuant to the Illinois Supreme Court rules. Additionally, this courtrejected the defendant's argument that the appeal was from the granting of his postconvictionpetition, because the defendant had withdrawn the postconviction petition.

On July 10, 2001, the defendant, by attorney Curtis Blood, filed a motion for leaveto file an amended postconviction petition, and an amended postconviction petition. Withinthe petition, the defendant alleged that Hildebrand had disregarded his directive to appeal theconvictions and sentences. The defendant also alleged that the circuit court had failed toadvise him of his right to appeal after he was resentenced. The State did not file an answeror a motion to dismiss the petition, and the cause proceeded to an evidentiary hearing.

At the hearing, the court stated that on July 12, 2001, it had granted the defendant'smotion for leave to file an amended postconviction petition. The defendant testified that hehad told Hildebrand that he wanted to appeal the convictions and sentences. The defendantalso talked about the direct appeal that this court denied: "The Court had granted me anappeal. *** My attorney *** advised me that *** once the judge grants you your right [toappeal][,] then what you have to do is withdraw the post[]conviction petition and be grantedyour right to appeal."

The defendant's mother, Deborah Keller, testified that she had hired Hildebrand torepresent the defendant at the trial. Thereafter, she paid Hildebrand approximately $1,300for transcripts to get the appeal started. Hildebrand told her that "it would take a while toget the appeal going" and that the appeal would take from three to five years.

Hildebrand testified that he had been retained to represent the defendant at the trial. He did not recall anyone asking him to represent the defendant on appeal. The followingcolloquy then occurred:

"Q. [Susan Jensen-Assistant State's Attorney:] Okay. After the conviction andthe sentencing, did you have any discussion with either Mr. Keller or his motherabout appeals?

A. [Thomas Hildebrand:] No. To my knowledge and belief, I did not. Again,I need to see the transcripts. I would think that probably I would have done[-]mycustom and practice would have been, as any time, would have been to have the judgeinstruct the clerk to file a notice of appeal.

Q. So that if that was not done, if the record did not reflect any notice ofappeal being filed, would that mean you did not discuss appeals with the defendant?

A. I wouldn't have filed a notice of appeal on behalf of the defendant unlessI was the attorney for the defendant for an appeal.

Q. Do you recall the defendant ever asking you or telling you that he wantedto appeal his conviction?

A. He may have. But, again, I would not have undertaken to do anything onhis behalf unless and until I was retained as his attorney for an appeal. That is awhole separate procedure than trying the case. It is a whole different ballgame.

Q. Do you recall having any discussions with *** Deborah Keller aboutobtaining transcripts?

A. I would-again, I don't have my notes in front of me. If I had any discussionregarding retaining transcripts, it would have been for the purpose of handling anypost[]trial motions. It wouldn't have been for handling an appeal unless and until Ihad entered my appearance and filed a motion[-]a notice of appeal on his behalf. Isaw the affidavit in there, something about me telling them an appeal would take threeor four years. I never made that statement to anybody in my life. Appeals don't takethree or four years, especially criminal appeals."

Later, the defendant's attorney questioned Hildebrand about the same issue:

"Q. [Curtis Blood:] Did I understand you to say that *** David Keller mayhave asked you to file an appeal ***?

A. *** I don't have my file in front of me. *** To my knowledge and belief,I am sure Mr. Keller *** wanted to appeal his sentence. I don't recall off[]hand whatwe did. I am just telling you that I am sure we discussed he probably wanted toappeal a conviction. *** But, as to whether or not I agreed that I would representhim on appeal, I did not undertake to represent him on an appeal.

Q. You are sure you did not agree to do an appeal for Mr. Keller?

A. I do very few criminal appeals. Had I been retained to do a criminal appeal,there would have been some money up front and there would have been a notice ofappeal filed. Again, I don't have the file in front of me to look at it and see what wasdone or what wasn't done with Mr. Keller's case.

Q. Did you file a notice of appeal in the case, Tom?

A. No. That is what I told you the last three times you asked me.

Q. Okay. Do you recall Mr. Keller being interested in appealing, wanting toappeal, but you were not retained? Am I saying that right?

A. That would be correct. I wasn't his Counsel for an appeal."

The circuit court took the matter under advisement, and with regard to the withdrawal of thedefendant's postconviction petition, the court noted, "I don't know if that is contingent uponanything or what the expectation [sic]."

On March 6, 2002, the circuit court entered an order dismissing the postconvictionpetition. The court stated, in relevant part, as follows:

"The defendant was granted leave to file an Amended Post[-]Conviction Petition onJuly 10, 2001 [sic]. The granting of leave to file such an Amended Petition does notnecessarily of itself indicate that the Court has jurisdiction or *** is grantingjurisdiction concerning the petition. *** The Petition filed and presented was anamendment to a then non[]existing Petition. Accordingly, it is dismissed. Additionally, even if the Court should liberally construe the pleading as a newly filedPost-Conviction Petition, the time of the filing is far outside the statutory time limitsas dictated by the dates of the conviction and disposition several years before." (Emphasis in original.)

On April 4, 2002, the defendant filed a postjudgment motion for reconsideration inwhich he attempted to address the circuit court's concerns about the dismissal of thepostconviction petition in 1999 and the timeliness of the filing of the amended postconvictionpetition. The circuit court denied the motion. The defendant filed a notice of appeal.

On appeal, the defendant claims that he was denied the effective assistance of counselwhen his attorney did not act on the defendant's directive to appeal the defendant'sconvictions and sentences. For this reason, the defendant asks this court to remand the causeto the circuit court with directions to provide the defendant a direct appeal.

The Illinois Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West2000)) provides a mechanism by which those under a criminal sentence in this state canassert that their convictions were the result of a substantial denial of their rights under theUnited States Constitution or the Illinois Constitution or both. People v. Coleman, 183 Ill.2d 366, 378-79, 701 N.E.2d 1063, 1070-71 (1998). A petition for postconviction relief isnot an appeal of the underlying judgment; rather, it is a collateral proceeding. As such, apostconviction proceeding allows an inquiry only into constitutional issues that were not, andcould not have been, adjudicated on direct appeal. Thus, issues that were raised and decidedon direct appeal are barred from consideration by the doctrine of res judicata; issues thatcould have been raised, but were not, are considered waived. People v. Johnson, 206 Ill. 2d348, 356, 794 N.E.2d 294, 300 (2002). The standard of review has been reduced to a simpleformula: a de novo review for the dismissal of a postconviction petition without anevidentiary hearing and a review for manifest error when a petitioner's constitutional claimshave been denied following an evidentiary hearing. Johnson, 206 Ill. 2d at 357, 794 N.E.2dat 301; see People v. Pitsonbarger, 205 Ill. 2d 444, 456, 793 N.E.2d 609, 619 (2002).

As we previously stated, this case is on appeal from the denial of the defendant'samended postconviction petition. The postconviction petition alleged as follows: "(1) Mr.Keller received ineffective assistance of counsel when his trial attorney failed to requestpre[]trial dismissal under the state speedy-trial statute [citation]; (2) Mr. Keller receivedineffective assistance of counsel when his trial attorney failed to appeal the judgment againsthim; and (3) the circuit court failed to advise Mr. Keller of his rights to appeal afterresentencing him." The circuit court disposed of the defendant's petition after an evidentiaryhearing, stating that it had been presented as an amendment to "a then non[]existing Petition"(emphasis in original) because the original postconviction petition had been withdrawn. Thecircuit court then dismissed the amended postconviction petition. We disagree with thisruling by the circuit court.

The amended postconviction petition should have been treated as if it were a newpostconviction petition. The circuit court explained why it would not treat the petition as ifit were a new postconviction petition: "[T]he time of the filing is far outside the statutorytime limits as dictated by the dates of the conviction and disposition several years before." While it is true that the Act sets forth certain time constraints for the filing of apostconviction petition, the Act also states that the petition can be filed at any time if the"petitioner alleges facts showing that the delay was not due to his or her culpablenegligence." 725 ILCS 5/122-1(c) (West 2000). The defendant in the instant case hasalleged such facts.

The record shows that the circuit court failed to properly advise the defendant of hisdirect appeal rights. See Official Reports Advance Sheet No. 21 (October 17, 2001), R.605(a), eff. October 1, 2001. Additionally, the defendant requested an appeal, andHildebrand admitted that he knew that the defendant wanted to file a notice of appeal. Hildebrand failed to file the notice of appeal and did not withdraw as the defendant's attorneyof record. See 134 Ill. 2d Rs. 13 (an attorney may not withdraw without leave of court), 1.16(a lawyer shall not withdraw from employment until the lawyer has taken reasonable stepsto avoid foreseeable prejudice to the rights of the client, including giving due notice to theclient and allowing time for the employment of other counsel); In re Rose Lee Ann L., 307Ill. App. 3d 907, 912, 718 N.E.2d 623, 627 (1999) ("an attorney may end the attorney-clientrelationship with or without cause so long as the client is not left in a position where he isprejudiced").

The State claims that in order for the defendant to succeed, he must show merit to thedirect appeal that he was denied, and it cites Roe v. Flores-Ortega, 528 U.S. 470, 145 L. Ed.2d 985, 120 S. Ct. 1029 (2000), People v. Edwards, 197 Ill. 2d 239, 757 N.E.2d 442 (2001),and People v. Hughes, 329 Ill. App. 3d 322, 767 N.E.2d 958 (2002), to support this position. We disagree.

In Peguero v. United States, 526 U.S. 23, 28, 143 L. Ed. 2d 18, 119 S. Ct. 961, 965(1999), the United States Supreme Court, describing the holding in Rodrequez v. UnitedStates, 395 U.S. 327, 23 L. Ed. 2d 340, 89 S. Ct. 1715 (1969), stated the rule as follows:"[W]hen counsel fails to file a requested appeal, a defendant is entitled to *** an appealwithout showing that his appeal would likely have had merit." This is so because adefendant who instructs counsel to initiate an appeal reasonably relies upon counsel to filethe necessary notice. Counsel's failure to do so cannot be considered a strategic decision;filing a notice of appeal is a purely ministerial task, and the failure to file reflects inattentionto the defendant's wishes. Flores-Ortega, 528 U.S. at 477, 145 L. Ed. 2d 985, 120 S. Ct. at1035. Additionally, the foregoing cases cited by the State are distinguishable from theinstant case because the defendants in those cases pleaded guilty. The defendant in the caseat bar argues that his case is similar to People v. Moore, 133 Ill. 2d 331, 338-39, 549 N.E.2d1257, 1260-61 (1990), because, like the Moore case, the defendant here was convicted at atrial and his attorney did not secure for him a direct appeal. While we agree that this caseis more akin to Moore than the foregoing cases cited by the State, the Moore decision is alsodistinguishable because a notice of appeal was filed in that case. Although the appeal inMoore was initially dismissed for lack of prosecution, the Illinois Supreme Court reinstatedthe appeal because the dismissal of the appeal had been solely due to the defendant'scounsel's failure to comply with the appellate rules. In the instant case, no notice of appealwas filed, so the appeal could not be reinstated as in the Moore decision.

The instant case is controlled by the United States Supreme Court's decision in Rodriquez v. United States, 395 U.S. 327, 23 L. Ed. 2d 340, 89 S. Ct. 1715 (1969). InRodriquez, the defendant was convicted at a trial, and his attorney did not secure for him adirect appeal to which he was entitled. The Rodriquez Court, referring to the fact that thepetition failed to specify the points that the petitioner would raise if he were given a right toappeal, stated, "those whose right to appeal has been frustrated should be treated exactly likeany other appellants; they should not be given an additional hurdle to clear just because theirrights were violated at some earlier stage in the proceedings." 395 U.S. at 330, 23 L. Ed. 2d340, 89 S. Ct. at 1717. The Rodriquez Court also noted that the trial judge had failed toadvise the defendant of his right to appeal. The Rodriquez Court reversed and remanded thecase to the district court for the petitioner to be resentenced, even though he had beensentenced six years earlier, so that he could perfect an appeal in the manner prescribed bythe applicable rules.

Likewise, in the instant case, the only effective relief that this court can give thedefendant is to restore his right to a direct appeal. For this reason, we reverse the circuitcourt's dismissal of the defendant's postconviction petition, and we remand this case to thecircuit court to resentence the defendant. The defendant must then file a notice of appeal inaccordance with Supreme Court Rule 606(b) (188 Ill. 2d R. 606(b)) to be entitled to a directappeal of his convictions and sentences.

Reversed; cause remanded with directions.

CHAPMAN and WELCH, JJ., concur.