People v. Moore

• Decision Date: 17 January 1990
• Docket Number: No. 67949,67949
• Citation: 140 Ill.Dec. 385,549 N.E.2d 1257,133 Ill.2d 331
• Parties: , 140 Ill.Dec. 385 The PEOPLE of the State of Illinois, Appellee, v. Carlos MOORE, Appellant.
• Court: Illinois Supreme Court

Page 1257

549 N.E.2d 1257

133 Ill.2d 331, 140 Ill.Dec. 385

The PEOPLE of the State of Illinois, Appellee, v. Carlos MOORE, Appellant.

No. 67949.

Supreme Court of Illinois.

Jan. 17, 1990.

Dennis Doherty, Chicago, for appellant.

Neil F. Hartigan, Atty. Gen., Springfield, and Cecil A. Partee, State's Atty., Chicago (Terence M. Madsen, Asst. Atty. Gen., Chicago, and Inge Fryklund and Elizabeth Sklarsky, Asst. State's Attys., of counsel), for people.

Justice CALVO delivered the opinion of the court:

Defendant, Carlos Moore, was charged in the circuit court of Cook County with murder and attempted armed robbery. He and three codefendants were tried jointly before a jury and were found guilty as charged on July 30, 1979. Defendant was sentenced to 80 years' imprisonment. Notice of appeal was filed June 2, 1980. The appeal was dismissed on July 22, 1980, for want of prosecution. Defendant's retained counsel had failed to file a docketing statement. In September of 1983, proceedings were initiated before the Attorney Registration and Disciplinary Commission (ARDC) which culminated in the attorney's suspension from the practice of law for 18 months, due in part to his neglect of defendant's appeal. (In re Fox (1988), 122 Ill.2d 402, 119 Ill.Dec. 370, 522 N.E.2d 1229.) Subsequent to his attorney's suspension, defendant filed a motion to reinstate his appeal. His motion to reinstate was denied on September 27, 1988, and motions for reconsideration were thereafter denied. We allowed defendant's petition for leave to appeal pursuant to our Rule 315 (107 Ill.2d R. 315).

The documents presented in support of defendant's motion to reinstate his appeal indicate that defendant first complained of his attorney's inaction on September 27, 1983, in a letter to Dennis Dohm of the Administrative Office of the Illinois Courts. In this letter, defendant stated that his trial counsel had agreed to represent him on appeal and that counsel had been paid to prosecute the appeal. Defendant claimed he had not heard from his attorney since 1980. He stated:

"Now any able-minded person knows that it does not take three years [for an attorney] to forward his client the necessary materials in order so [sic ] he could know what issues are being filed in his behalf, or know what stage his appeal is in. Mr. Dohm, I'm at a complete disadvantage as far as my appeal is concerned. I'm just an indigent defendant * * * with no where to turn."

By a letter dated September 30, 1983, defendant was informed that his letter was being forwarded to the ARDC.

It appears that defendant eventually filed a complaint with the ARDC. In this complaint, defendant reiterated much of what was contained in his September 27 letter to the Administrative Office of the Illinois Courts. He again appealed for "help in this matter." In responding to the complaint, defendant's attorney claimed defendant's appeal had been "denied." Defendant was sent a copy of his attorney's response. On November 5, 1984, the ARDC sent defendant a letter apprising him that a formal complaint would be filed against his attorney. The ARDC complaint, filed January 27, 1986, alleged:

"At [no] time following the July 22, 1980 order [of dismissal], did Respondent take any action to reinstate the appeal in case no. 80-1615 or advise Moore that his appeal had been dismissed."

There is nothing in the documents presented to us which would indicate defendant received a copy of the ARDC complaint.

What does appear is a compilation of some of the letters written to and by defendant during the period from May 19, 1986, to August 4, 1988. A summary chronicle of these letters follows:

                 Letter from ARDC to defendant requests defendant's presence at ARDC   5/19/86
                  hearing
                 In a letter from defendant to ARDC, defendant requests information    12/17/86
                  regarding the status of disciplinary proceedings and his appeal
                 ARDC informs defendant he need not appear at the disciplinary         1/8/87
                  hearing
                 Letter from Administrative Office of the Illinois Courts advises      10/8/87
                  defendant to submit a written demand to his attorney for return of
                  retainer paid and for defendant's transcript
                 In a letter to the circuit court of Cook County, defendant requests   10/19/87
                  his trial transcript per advice of the "Administrative Court
                  Judge."
                 ARDC receives letter from defendant inquiring as to the reason for    12/11/87
                  his attorney's suspension and seeking "needed material to perfect
                  [his] appeal."
                 In a letter from ARDC to defendant, ARDC reiterates that Review       12/16/87
                  Board had "recommended" suspension for 18 months due to attorney's
                  neglect of defendant's and others' criminal appeals
                 Letter from ARDC with enclosed copy of May 31, 1988, order            8/4/88
                  suspending defendant's attorney, informs defendant, "Although we
                  cannot comment or advise you as to other remedies available to you,
                  we do recommend that you consult an attorney."
                

Defendant's motion to reinstate his appeal states that defendant did contact an attorney and, in July of 1988, was advised that his appeal had been dismissed for want of prosecution. Defendant, who had only a ninth-grade education, claims he had not understood what had happened until he was so advised. He promptly moved for reinstatement of his direct appeal upon learning what had transpired. The appellate court denied, without comment, defendant's motion to reinstate and subsequent motions to reconsider.

At the outset, we note that there is no dispute between the parties as to the ground for dismissal of defendant's appeal or defendant's efforts to preserve his right to a direct appeal. The State, however, questions the adequacy of defendant's efforts and contends that defendant's remedy lies, not in the reinstatement of his direct appeal, but in the Post-Conviction Hearing Act (Ill.Rev.Stat.1987, ch. 38, par. 122-1 et seq.). Relying primarily upon this court's decisions in People v. Mims (1980), 82 Ill.2d 63, 44 Ill.Dec. 246, 411 N.E.2d 215, People v. Jacobs (1975), 61 Ill.2d 590, 338 N.E.2d 161, People v. Aliwoli (1975), 60 Ill.2d 579, 328 N.E.2d 555, and People v. Brown (1968), 39 Ill.2d 307, 235 N.E.2d 562, defendant contends he is entitled to reinstatement of his direct appeal. We believe defendant's direct appeal should be reinstated, and so order.

In Evitts v. Lucey (1985), 469 U.S. 387, 105 S.Ct. 830, 83 L.Ed.2d 821, the United States Supreme Court addressed a question very similar to the one at bar. In Evitts, the criminal defendant's direct appeal was dismissed in State court because his attorney had failed to comply with a Kentucky rule of procedure which required the filing of a "statement of appeal." Attempts to obtain either reinstatement of the lapsed appeal or a belated appeal proved unavailing at the State level. Defendant fared better in Federal court where he was granted a conditional writ of habeas corpus ordering his release unless Kentucky either reinstated his appeal or retried him. The Court of Appeals for the Sixth Circuit affirmed (Lucey v. Kavanaugh (6th Cir.1984), 724 F.2d 560), and the Supreme Court granted a petition for certiorari. The Court affirmed, concluding that "nominal representation on an appeal as of right * * * does not suffice to render the proceedings constitutionally adequate." (Evitts, 469 U.S. at 396, 105 S.Ct. at 836, 83 L.Ed.2d at 830.) The Court held that a State cannot penalize a criminal defendant by dismissing his first appeal as of right when his counsel has failed to follow mandatory appellate rules. (See Pennsylvania v. Finley (1987), 481 U.S. 551, 557, 107 S.Ct. 1990, 1994, 95 L.Ed.2d 539, 547.) In so holding, however, the Court recognized that State courts must somehow enforce a wide range of vital procedural rules governing appeals and the Court spoke to that concern:

"To the extent that a State believes its procedural rules are in jeopardy, numerous courses remain open. For example, a State may certainly enforce a vital procedural rule by imposing sanctions against the attorney, rather than against the client. Such a course may well be more effective than the alternative of refusing to decide the merits of an appeal and will reduce the possibility that a defendant who was powerless to obey the rules will serve a term of years in jail on an unlawful conviction. If instead a State court chooses to dismiss an appeal when an incompetent attorney has violated local rules, it may do so if such action does not intrude upon the client's due process rights. For instance the Commonwealth of Kentucky itself in other contexts has permitted a post-conviction attack on the trial judgment as 'the appropriate remedy for frustrated right of appeal,' Hammershoy v. Commonwealth, 398 S.W.2d 883 (Ky.1966); this is but one of several solutions that state and federal courts have permitted in similar cases. A system of appeal as of right is established precisely to assure that only those who are validly convicted have their freedom drastically curtailed. A State may not extinguish this right because another right of the appellant--the right to effective assistance of counsel--has been violated." Evitts, 469 U.S. at 399-400, 105 S.Ct. at 837-38, 83 L.Ed.2d at 832.

Evitts and the cases cited therein, both in text (Hammershoy ) and footnote (Rodriquez v. United States (1969), 395 U.S. 327, 89 S.Ct. 1715, 23 L.Ed.2d 340; United States v. Winterhalder (10th Cir.1983), 724 F.2d 109; Stahl v. Commonwealth (Ky.1981), 613 S.W.2d 617), collectively indicate that either a motion to reinstate an appeal, addressed to the appellate court, or a post-conviction attack, addressed in the first instance to the trial court, can be utilized to obtain relief where a direct appeal has been dismissed due to the neglect of defendant's attorney. Stahl, like Evitts, would appear to sanction either procedure. (Stahl, 613 S.W.2d at 618.) Winterhalder held that the filing of a notice of appeal transfers...