People v. Lilly

• Decision Date: 08 July 1997
• Docket Number: No. 5-95-0758,5-95-0758
• Parties: , 227 Ill.Dec. 588 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. John W. LILLY, Defendant-Appellant. . Rule 23 Order Filed
• Court: United States Appellate Court of Illinois

Page 1070

687 N.E.2d 1070

291 Ill.App.3d 662, 227 Ill.Dec. 588

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. John W. LILLY, Defendant-Appellant.

No. 5-95-0758.

Appellate Court of Illinois Fifth District.

Rule 23 Order Filed July 8, 1997.

Motion to Publish Granted Sept. 4, 1997.

Opinion Filed Sept. 4, 1997.

Daniel M. Kirwan, Deputy Defender, Office of the State Appellate Defender, Mt. Vernon, Laura R. Andrews, Granite City, for Defendant-Appellant.

Michael Wepsiec, State's Attorney, Murphysboro, Norbert J. Goetten, Director, Stephen E. Norris, Deputy Director, Debra A. Buchman, Staff Attorney, Office of the State's Attorneys Appellate Prosecutor, Mt. Vernon, for Plaintiff-Appellee.

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, 93 Ill.Dec. 747, 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, 198 Ill.Dec. 851, 857, 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, 212 Ill.Dec. 824, 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...