People v. Ross

Decision Date05 June 2008
Docket NumberNo. 103972.,103972.
PartiesThe PEOPLE of the State of Illinois, Appellant, v. Vernon ROSS, Appellee.
CourtIllinois Supreme Court
891 N.E.2d 865
229 Ill.2d 255
The PEOPLE of the State of Illinois, Appellant,
Vernon ROSS, Appellee.
No. 103972.
Supreme Court of Illinois.
June 5, 2008.

[891 N.E.2d 867]

Lisa Madigan, Attorney General, Springfield, Richard A. Devine, State's Attorney, Chicago (Michael M. Glick, Assistant Attorney General, Chicago, James E. Fitzgerald, Alan J. Spellberg, Aisha T. Cornelius and Ashley Romito, assistant State's Attorneys, of counsel), for the People.

Michael J. Pelletier, Deputy Defender, Rebecca I. Levy, Assistant Appellate Defender, Office of the State Appellate Defender, Chicago, for appellee.


Justice FITZGERALD delivered the judgment of the court, with opinion:

The central issue in this case is what remedy exists for a post-conviction petitioner whose trial attorney failed to file a notice of direct appeal. The State appeals the decision of the appellate court, affirming the circuit court of Cook County's order allowing petitioner Vernon Ross to file a late notice of appeal. No. 1-05-2806 (unpublished order under Supreme Court Rule 23). For the reasons that follow, we affirm.


On January 18, 1999, just before midnight, Doyinsola Odumuyiwa was walking to his home on Chicago's north side. Concerned about his safety, Odumuyiwa began walking down the middle of the street, when he noticed another man walking in the opposite direction. As they passed, the man abruptly changed direction and began following Odumuyiwa. At an intersection, the man reached Odumuyiwa and spoke to him. Odumuyiwa did not respond

891 N.E.2d 868

and kept walking. The man crossed to the sidewalk on the right side of the street, and as Odumuyiwa proceeded to the sidewalk on the left side, the man called out, "Come here." When Odumuyiwa turned around, he saw the man pointing a small gun at him.

Odumuyiwa approached, stopping less than five feet from the man. The man pointed the gun at his chest and demanded his wallet; Odumuyiwa complied. The man took the wallet and asked Odumuyiwa if he had any money. Odumuyiwa said that he had only one dollar and a credit card. After two minutes, the man told him that he was free to leave. Odumuyiwa ran away and at the next street immediately encountered a car occupied by plainclothes police officers. The police officers drove Odumuyiwa back to the scene of the robbery and, moments later, found the petitioner, whom Odumuyiwa identified as his assailant. As the police officers neared the petitioner, he threw some items into a bush, where an officer retrieved Odumuyiwa's wallet and a pellet gun, which Odumuyiwa identified as the one used in the robbery.

The petitioner was arrested and indicted for armed robbery. At the petitioner's bench trial, Odumuyiwa, the police officer who recovered the gun, and the petitioner all testified. Odumuyiwa stated that the petitioner pointed "a black, very portable gun" at him, adding the gun was "small" and "something you can conceal." The police officer stated that the gun was a "4.5 BB caliber gun with a three inch barrel." The State did not offer the gun itself into evidence, but the inventory sheet lists a "MARKSMAN PLAINSMAN * * * 4.5 BB CAL. PELLET GUN 3 INCH BARREL BLACK IN COLOR," but does not mention any pellets. The petitioner was convicted and sentenced to eight years' imprisonment. He filed a posttrial motion, arguing that the State failed to prove beyond a reasonable doubt that the gun was a dangerous weapon. The trial court denied this motion, stating:

"[T]he testimony in the record was that the victim was in fear of his life when he observed what he thought to be a small gun that could be easily concealed. The officers recovered the gun. The victim observed the gun. Everything in the record suggested to this Court that the victim clearly believed it to be a dangerous weapon."

There was no direct appeal.

Nearly two years later, the petitioner filed a pro se postconviction petition, alleging that his trial attorney was ineffective for failing to file a timely notice of appeal and for failing to argue on appeal that the pellet gun was not a dangerous weapon. The trial court appointed counsel for the petitioner, and the State filed a motion to dismiss his petition. The trial court denied the State's motion and conducted an evidentiary hearing on the petitioner's claims. After hearing testimony from the petitioner and his attorney, the trial court concluded that defense counsel was ineffective for failing to file a notice of appeal. The court decided that the proper remedy would be to allow the petitioner to file a late notice of appeal nunc pro tunc to the date that he was sentenced.

In his direct appeal, the petitioner again argued that the State had failed to prove beyond a reasonable doubt that the gun was a dangerous weapon. The State responded that the appellate court did not have jurisdiction because the notice of appeal was untimely under Supreme Court Rule 606. See 210 Ill.2d R. 606. The State also asserted that the trial court could have inferred that the gun was a dangerous weapon.

The appellate court stated that the trial court was incorrect in making the notice of

891 N.E.2d 869

appeal nunc pro tunc to the date of the petitioner's sentencing, because there was no notice of appeal filed at all. "Nonetheless," continued the appellate court, "a criminal defendant must at some point be afforded the equivalent of direct review and an appellate advocate." After discussing this court's holding in People v. Moore, 133 Ill.2d 331, 338, 140 Ill.Dec. 385, 549 N.E.2d 1257 (1990), the court observed that because appellate jurisdiction was never invoked, the defendant's recourse was filing a postconviction petition. According to the appellate court, the order granting leave to file a notice of appeal was a proper remedy under the Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2004)). The court turned to the merits and concluded that the State did not prove beyond a reasonable doubt that the pellet gun was a dangerous weapon. The appellate court reversed the petitioner's armed robbery conviction and remanded so the trial court could enter judgment on the lesser-included offense of robbery and sentence the petitioner accordingly. No. 1-05-2806 (unpublished order under Supreme Court Rule 23). We allowed the State's petition for leave to appeal. 210 Ill.2d R. 315(a).


The Post-Conviction Hearing Act provides a procedural mechanism through which a criminal defendant can assert "that in the proceedings which resulted in his or her conviction there was a substantial denial of his or her rights under the Constitution of the United States or of the State of Illinois or both." 725 ILCS 5/122-1 (West 1998). In a postconviction proceeding, the trial court does not redetermine a petitioner's innocence or guilt, but instead examines constitutional issues that escaped earlier review. People v. Blair, 215 Ill.2d 427, 447, 294 Ill.Dec. 654, 831 N.E.2d 604 (2005). Here, the petitioner alleged that he received ineffective assistance of counsel when his attorney failed to file a notice of appeal and, consequently, failed to argue on appeal that the gun used in the robbery was not a dangerous weapon.

Ineffective assistance of counsel claims are evaluated under the now-familiar two-prong test of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). People v. Albanese, 104 Ill.2d 504, 526-27, 85 Ill.Dec. 441, 473 N.E.2d 1246 (1984). Under Strickland, a defendant must prove that defense counsel's performance fell below an objective standard of reasonableness and that this substandard performance caused prejudice. People v. Johnson, 218 Ill.2d 125, 143-44, 299 Ill.Dec. 677, 842 N.E.2d 714 (2005).

In Roe v. Flores-Ortega, 528 U.S. 470, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000), the Supreme Court extended Strickland to ineffective-assistance claims based upon defense counsel's failure to file a notice of appeal: "[W]hen counsel's constitutionally deficient performance deprives a defendant of an appeal that he otherwise would have taken, the defendant has made out a successful ineffective assistance of counsel claim entitling him to an appeal." Flores-Ortega, 528 U.S. at 484, 120 S.Ct. at 1039, 145 L.Ed.2d at 1000.

The performance and prejudice prongs of Strickland still apply, but they are tailored to fit this context. Regarding performance, it is professionally unreasonable to disregard specific instructions from the defendant to file a notice of appeal. Rodriquez v. United States, 395 U.S. 327, 89 S.Ct. 1715, 23 L.Ed.2d 340 (1969).1

891 N.E.2d 870

Here, the petitioner filed a pro se notice of appeal after he was found guilty by the trial court, but before sentencing, and withdrew it as premature. After he was sentenced on August 10, 2000, he did not file another notice of appeal, and neither did his attorney. In his pro se postconviction petition, the petitioner alleged:

"It was the duty and obligation of [defense counsel] to protect [petitioner's] rights by filing a timely Notice of Appeal. [Petitioner] was not in agreement with the guilty finding and sentence he received and made it clear to [defense counsel] that he wanted to appeal this judgment. [Defense counsel] stated that he would file [a] Notice of Appeal on behalf of his Client and Petitioner assumed that a Notice of Appeal had been filed in this case."

At the evidentiary hearing on his petition, the petitioner testified that he told defense counsel after the trial court's finding of guilt that he wished to appeal his conviction. Defense counsel could not recall such a conversation.

The record thus reveals that the petitioner communicated his desire for a direct appeal to defense counsel. As the trial court correctly stated, filing of a notice of appeal is a ministerial task (see Flores-Ortega, 528 U.S. at 477, 120 S.Ct. at 1035, 145 L.Ed.2d at 995), and defense counsel's performance in failing to file that notice was substandard.


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