People v. Lilly
State: Illinois
Court: 5th District Appellate
Docket No: 5-95-0758
Case Date: 09/04/1997
Rule 23 Order filed
July 8, 1997;
Motion to publish granted
September 4, 1997. NO. 5-95-0758
IN THE
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
_________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS,) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Jackson County.
)
v. ) No. 83-CF-240
)
JOHN W. LILLY, ) Honorable
) David W. Watt, Jr.,
Defendant-Appellant. ) Judge, presiding.
_________________________________________________________________
JUSTICE CHAPMAN delivered the opinion of the court:
Defendant seeks to appeal from the dismissal of his petition
seeking postconviction relief in the circuit court of Jackson
County. The State has objected, contending that the appeal is
untimely, given that the petition was dismissed on November 14,
1991, and that Supreme Court Rule 606(c) (134 Ill. 2d R. 606(c))
cannot be extended to allow this court to assume jurisdiction of an
appeal more than six months after the entry of final judgment. The
State has also addressed the merits of the appeal, in the event
that the appeal is allowed to go forward. We have taken this issue
with the appeal and will address it before proceeding to other
issues.
I.
Defendant was charged with the murder of Edward Fletcher, Jr.
Following a jury trial in the circuit court of Jackson County, he
was found guilty and sentenced to 40 years in prison. This court
affirmed his conviction and sentence in People v. Lilly, 139 Ill.
App. 3d 275, 487 N.E.2d 414 (1985). Defendant's January 13, 1988,
postconviction petition was dismissed on March 29, 1989, on res
judicata grounds. The State was ordered to prepare a written order
to that effect. On February 1, 1991, this court reversed the
dismissal of the petition because counsel had failed to file a
certificate pursuant to Supreme Court Rule 651(c) (134 Ill. 2d R.
651(c)). We directed that on remand someone other than Public
Defender Robert Van Derhoff should be appointed to represent
defendant in postconviction proceedings.
Kari Mason, an assistant public defender, was appointed to
represent defendant. She filed a Rule 651(c) certificate on June
24, 1991, at a status hearing at which defendant was present. The
State filed a motion to dismiss the postconviction petition on
September 12, 1991, and the court dismissed the petition on
November 15, 1991.
Almost four years later, on September 25, 1995, defendant
filed a pro se "motion to show reasonable cause for late notice of
appeal" in the circuit court of Jackson County. This motion
asserted that defendant never received notice that his
postconviction petition had been dismissed on November 15, 1991,
and the motion sought leave of the trial court to file a late
notice of appeal. The circuit court forwarded the motion to this
court, and it was filed on October 11, 1995. Ultimately, this
court appointed the local Office of the State Appellate Defender to
represent defendant on appeal and granted it additional time in
which to file a properly amended motion for leave to file a late
notice of appeal.
On December 7, 1995, appellate counsel filed a motion to have
defendant's October 11, 1995, document construed as a timely notice
of appeal, notwithstanding that it was filed nearly fours years
after his postconviction petition was dismissed. Counsel asserts
that because the circuit clerk failed to send defendant notice of
the adverse decision and to inform him of his rights to appeal as
mandated by Supreme Court Rule 651(b) (134 Ill. 2d R. 651(b)), his
failure to file a timely notice of appeal is excused. The State
filed an objection and argues that this court is without
jurisdiction to entertain the appeal because the appeal not only
was filed more than 30 days after the entry of judgment (see
Supreme Court Rule 606(b) (134 Ill. 2d R. 606(b)) but was filed
well beyond the six-month extension period provided for under
Supreme Court Rule 606(c).
Supreme Court Rule 606(b) mandates that a notice of appeal be
filed within 30 days from the entry of the judgment from which the
appeal is taken. However, the appellate court may extend this
period in appeals from criminal convictions. Rule 606(c) provides:
"On motion supported by a showing of reasonable excuse for
failing to file a notice of appeal on time filed in the
reviewing court within 30 days of the expiration of the time
for filing the notice of appeal, or on motion supported by a
showing by affidavit that there is merit to the appeal and
that the failure to file a notice of appeal on time was not
due to appellant's culpable negligence, filed in the reviewing
court within six months of the expiration of the time for
filing the notice of appeal, in either case accompanied by the
proposed notice of appeal, the reviewing court may grant leave
to appeal and order the clerk to transmit the notice of appeal
to the trial court for filing." 134 Ill. 2d R. 606(c).
Appeals in postconviction proceedings are governed by Supreme
Court Rule 651 (134 Ill. 2d R. 651). Appeals in those proceedings
are to be as near as is practicable in conformance with the rules
governing criminal appeals, and thus Rule 606, which applies to
criminal appeals, governs the time limits for filing postconviction
appeals.
Defendant maintains that because the clerk of the circuit
court failed to give him proper notice of the adverse decision on
his postconviction petition and to inform him of the necessity to
file an appeal from that decision within 30 days of the entry of
the order, his appeal should be considered timely. His affidavit
in support of his September 25, 1995, motion swore that he did not
receive proper notice. The docket sheets and the common law record
are devoid of any indication that proper notice was sent in
conformance with Rule 651(b). Defendant's appellate counsel
requested that the circuit clerk's office tender the Rule 651(b)
notice and was informed by the clerk that no records showed that
the notice was ever prepared. The common law record, including the
docket sheets, "imports verity and is presumed correct." People v.
Brooks, 158 Ill. 2d 260, 274, 633 N.E.2d 692, 698 (1994). We
therefore believe that this court may safely assume that no notice
was sent.
The right to appeal a criminal conviction is fundamental and
is guaranteed by the Illinois Constitution of 1970 (Ill. Const.
1970, art. VI, 6); People v. Swanson, 276 Ill. App. 3d 130, 657
N.E.2d 1169 (1995). From the record it appears that the defendant
has been deprived of his right to notice of the adverse decision
regarding his postconviction petition and his right to appeal
therefrom. Defendant was denied his right to appeal as a result of
circumstances over which he had little, if any, control. See
People v. Jacobs, 61 Ill. 2d 590, 338 N.E.2d 161 (1975). Given the
circumstances, we grant defendant's motion for leave to respond to
the State's objection, we grant defendant's motion to construe his
appeal as timely, and we will entertain defendant's appeal on the
merits.
II.
Defendant contends that Kari Mason, an assistant public
defender for Jackson County, who was appointed to represent him on
the remand of his postconviction case by this court, failed to
follow the court's directions. He asserts that it is necessary to
reverse the dismissal of his petition and remand again to the
circuit court.
As noted above, defendant filed a pro se postconviction
petition on January 13, 1988. This petition raised the same issues
that were raised on direct appeal. The Office of the Jackson
County Public Defender, rather than a specific attorney in that
office, was appointed to represent him. On March 8, 1988,
Assistant Jackson County Public Defender Andrew Zinner wrote a
letter to defendant and told him that he had been appointed to
represent defendant during postconviction proceedings. Zinner
discussed his review of the record and the petition itself, noted
that defendant's contentions of the deprivation of constitutional
rights had already been raised on direct appeal, and told him that
no amendment could be made to the petition. Public Defender Robert
Van Derhoff appeared in court, as did defendant, at the hearing on
the petition for postconviction relief, on March 29, 1989. No
mention of the whereabouts of Andrew Zinner was made. The
postconviction petition was dismissed at the end of the hearing by
the circuit court on res judicata grounds. The notice of appeal
filed April 17, 1989, indicated that Robert Van Derhoff was
defendant's attorney, and Van Derhoff signed the notice of appeal,
as well as a request for the preparation of the record. On
February 1, 1991, this court reversed the dismissal of the petition
and remanded it for further proceedings because counsel had failed
to file a certificate pursuant to Supreme Court Rule 651(c) and the
record did not indicate that counsel consulted with defendant or
examined the trial court record. We declined to require some
entity other than the public defender's office to represent
defendant, and we directed that on remand someone from the public
defender's office other than Public Defender Robert Van Derhoff
should be appointed to represent defendant.
On April 16, 1991, Kari A. Mason, an assistant Jackson County
public defender in the office headed by Public Defender Robert Van
Derhoff, was appointed to represent defendant on remand. At the
May 7, 1991, status hearing, Mason informed the court that her
office was unable to find defendant's case file. She told the
court that Van Derhoff told her that Andrew Zinner, a former
assistant public defender, reviewed the record carefully,
interviewed the defendant as required by Rule 651, told defendant
that there was no viable postconviction issue, and sent a letter to
defendant detailing his conclusions. Mason assured the court that
she would seek the letter and review it, talk with defendant, and
file a Rule 651(c) certificate. Mason believed that if the
defendant's office file could not be found, she would have to
repeat the work done by Zinner and fulfill the requirements of Rule
651(c) herself. Although she had already attempted to get the
court file and transcript, she could not find it in the courthouse.
On July 24, 1991, defendant appeared with counsel, who
informed the court that the transcript had still not been located.
She had, however, found the defendant's public defender file. The
file contained voluminous notes made by Attorney Zinner as he
reviewed the transcript, including correlating constitutional
issues raised by reference to pages of the transcript. Mason
characterized Zinner's work as "an exhaustive review of the
transcript." The file also included a March 7, 1988, letter from
Zinner to defendant in which he discussed the postconviction
petition, which Mason attached to her Rule 651(c) certificate. The
letter indicated that Zinner had reviewed the court file, the
transcripts of each pretrial proceeding, the trial transcripts, and
all posttrial hearing transcripts, as well as the appellate court's
decision on direct appeal. Zinner told defendant that his
petition, which he had reviewed thoroughly, raised issues which had
already been raised on direct appeal and decided adversely to
defendant. Zinner explained the concept of res judicata to
defendant and indicated that as the petition then stood, it was
subject to dismissal. He stated that the State had already filed
a motion to dismiss it on res judicata grounds. He informed
defendant that in order to prevent his petition from being
dismissed, it would be necessary to raise additional and new
constitutional issues which had not and could not have been
previously raised on direct appeal. Zinner stated that his search
of all of the information had not yielded any such issue, and that
there was "no question" that not only did his attorney provide
effective representation, but his attorney did an outstanding job.
He told defendant that there were no issues which merited an
amended petition for postconviction relief, and that he welcomed
any comments defendant might have or any assistance he might be
able to provide.
Mason met with defendant and conferred with him about his
petition, prior to the beginning of the June 24, 1991, hearing. He
acknowledged receiving the letter from Zinner, and he and Mason
reviewed it together. Mason told the court that defendant
indicated that he understood the postconviction proceeding, based
on Zinner's letter, as well as the mandate issued by this court.
She then filed a Rule 651(c) certificate "in compliance with the
mandate of the Court."
The court questioned defendant, who asserted that he thought
that there were constitutional violations that had not been
addressed, but he was unable to even give a general statement as to
what those violations were. After the court went over the petition
one issue at a time, it instructed defendant to communicate any
unaddressed constitutional issues to Mason promptly, and the court
set September 6, 1991, as the date by which any amendments to the
petition or issues of constitutional dimension which were not
previously raised had to be brought to the attention of the court.
On that date, defense counsel was to either file a postconviction
petition, a motion to reaffirm her Rule 651(c) certificate, or any
other appropriate pleading. Mason reiterated the court's
instructions to defendant in a June 26, 1991, letter, which is of
record, and told him that any pleadings or issues he wanted to have
included in a postconviction petition had to be sent to her by
August 6, 1991, in order to allow her time to make any necessary
amendments to his petition.
As indicated earlier, there is no indication on the docket
sheet or in the common law record that the dismissal of defendant's
case was communicated to him by the office of the circuit court.
A letter filed July 1, 1991, from the United States District Court,
Central District, to the Jackson County clerk's office is of
record. It indicated that the records in this case had been
located by the circuit clerk of Jackson County and returned to her
by the Attorney General's office in Springfield. On September 12,
1991, the State filed a motion to dismiss defendant's
postconviction petition on res judicata grounds, indicating that as
of that date, no amended postconviction petition had been filed.
The motion was granted on November 15, 1991.
A postconviction petitioner is only guaranteed a reasonable
level of assistance of counsel under the Post-Conviction Hearing
Act (Act) (735 ILCS 5/122-1 et seq. (West 1994)). People v.
Flores, 153 Ill. 2d 264, 276, 606 N.E.2d 1078, 1084 (1992). Under
Rule 651(c), the record must show, or counsel must file a
certificate alleging, that counsel has consulted with a pro se
defendant and made any amendments to petitions filed pro se, in
order that the defendant's contentions are adequately represented.
People v. Doggett, 255 Ill. App. 3d 180, 187, 625 N.E.2d 923, 929
(1993). The language of the rule states that the filing of a
certificate may be used to make the required showing; it does not
require a certificate. Further, the Illinois Supreme Court has
held that substantial compliance is all that is required. People v.
Szabo, 144 Ill. 2d 525, 532, 582 N.E.2d 173, 176 (1991).
Postconviction counsel complies with the requirements of Supreme
Court Rule 651(c) where the record demonstrates that counsel
consulted with the defendant to ascertain his or her contentions of
deprivation of constitutional rights; that counsel read as much of
the trial transcript as necessary to present and support those
constitutional claims adequately; and that counsel made any
necessary amendments to the pro se petition which had been filed.
People v. Zambrano, 266 Ill. App. 3d 856, 868, 640 N.E.2d 1334,
1342 (1994).
As this court noted in its order of February 1, 1991, the
record contained no Rule 651(c) certificate and it was insufficient
to allow the reviewing court to conclude that postconviction
counsel had substantially complied with the rule. The order did
not mandate that a Rule 651(c) certificate be filed, but only that
the cause be remanded to the circuit court for further proceedings
on the postconviction petition. Mason's Rule 651(c) certificate,
with its supporting documentation, was sufficient to establish that
attorney Zinner had consulted with the defendant to ascertain his
contentions of deprivations of his constitutional rights, had
examined the record of the proceedings at trial, and had concluded
that there were no amendments to defendant's pro se petition which
could be legitimately made. Moreover, defendant admitted to Mason
that Zinner had consulted with him by letter. The record
established by Mason clearly demonstrates that attorney Zinner
fulfilled the requirements of Rule 651(c), despite the fact that he
did not file a certificate.
Whether Mason reviewed the record, which was apparently in the
hands of the Jackson County circuit clerk as of July 1, 1991, is of
no consequence, given that the performance of counsel which this
court sought to have established was that of defendant's
postconviction counsel at the time of his 1988 postconviction
petition, not that of Mason in 1991. That Andrew Zinner worked
with Robert Van Derhoff is also of no consequence. Although Van
Derhoff appeared in court at the hearing on the petition, Zinner
was the attorney who apparently handled the case. Van Derhoff was
not appointed as an individual to represent defendant on remand,
and so this court's order was obeyed by the circuit court.
The dismissal of defendant's petition seeking postconviction
relief is affirmed.
Motion for leave to respond granted; motion to consider appeal
timely granted; judgment affirmed.
KUEHN, P.J., and HOPKINS, J., concur.
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