Practical Appeals Advice

This article was published in Bar Briefs, the monthly journal of the Kane County Bar Association in March, 2013

Part 14 - “I DON’T DO POST-TRIAL MOTIONS” OR “I WASN’T PAID FOR THAT WORK”:

THE PERILS OF CASTING THE CLIENT ADRIFT IN CRIMINAL CASES

I. INTRODUCTION

I appreciate the confidence of many experienced attorneys who have sought my advice on preparing their clients’ cases for appeal in the wake of adverse trial determinations. These able advocates advise me that they lack expertise in appellate advocacy and wish to act diligently to lay the groundwork for other counsel to petition for a new trial or reversal of a conviction in the Appellate Court. But in the past few years, this admirable effort to protect the clients’ interests has been accompanied by the comments typified in the title of this article.

I write on this topic to encourage trial lawyers to re-think their assumption that they can summarily end their representation immediately after a trial loss. In criminal cases, the principal danger in abandoning the case at this stage of the proceedings is the likelihood that the trial attorney will be found ineffective if the client loses the right to appeal. In civil cases, the failure to preserve the right to appeal could expose trial counsel to a civil suit for damages based on a theory of legal malpractice.

I fully understand the desire, as one colleague phrased it, “to see the client in the rear-view mirror.” After diligent efforts in consulting with the client, examining the relevant reports, interviewing persons with pertinent information, presenting pre-trial motions, and investing the massive effort required in preparing for trial and examining witnesses, the loss at trial enervates even the most vigorous advocate.

However, if the client has indicated a desire to appeal, one last effort is required to avoid these hazards by preparing and presenting appropriate post-trial and/or post-sentencing motions to the trial court. For the reasons that follow, I contend that the trial lawyer may not dodge this responsibility, regardless of whether the client has paid for this particular service, regardless of the terms of any retainer agreement, and regardless of the perceived merits of an appeal.

II. THE THREAT OF WAIVER/FORFEITURE

The Appellate Court addresses a high volume of appeals, due in part to the right to a free appeal for indigents convicted of serious crimes. In order to reduce this volume, reviewing courts rely on a variety of appellate rules permitting dispositions without resolving the merits of cases. Thus, the Court routinely rules that a party has forfeited or waived the right to raise issues due to failure to preserve them in circuit court. Despite the fact that lower courts rarely reverse rulings they entered before or during trial, the failure to specify those issues in a post-trial motion is a sure ticket to deprive your client of a decision on the merits on direct appeal. Therefore, any temptation to end representation of your client before filing a post-trial motion risks an accusation of your ineffectiveness in the trial court because you waived all but a few issues on appeal.

III. CRIMINAL CASES - INEFFECTIVE ASSISTANCE OF COUNSEL

You might be tempted to think that a claim of ineffective assistance will only have merit if the underlying, waived legal issues would have succeeded if properly preserved. After all, doesn’t the Strickland decision require proof of prejudice to the client’s case in addition to the attorney’s failure to perform his or her responsibilities at the level of reasonably competent counsel? The answer is that prejudice is presumed to result from the loss of the right to appeal, REGARDLESS OF WHETHER THE CLIENT WOULD HAVE PREVAILED ON THE ISSUES THAT SHOULD HAVE BEEN RAISED IN A POST-TRIAL MOTION.

I contend that this legal principle trumps any claim that the client did not pay for post-trial services and/or the lawyer did not agree to provide them. Regardless of the cost of the representation and the terms of any fee agreement, counsel has a duty to preserve the client’s appellate rights. Any contrary ruling would endorse the right of counsel to abandon the client’s interests at the crucial moment when the attorney must preserve the right to appeal. I cannot imagine a reviewing court adopting such a view, especially in the absence of informed consent. And what knowledgeable client would agree to a contractual arrangement containing words to this effect: “I hereby waive any claim against my lawyer for failing to preserve my right to appeal in the event of my conviction. I understand that the right to appeal might be my only opportunity to overturn a conviction in the event that counsel’s efforts defending me at trial have been unsuccessful.”

Although the presumption of prejudice contained in the case law is premised on the client asserting a desire to appeal, danger lurks in this seemingly innocuous premise. As we know, the recollections of clients and attorneys concerning their consultations tend to diverge when the defense has failed and a criminal conviction ensues, particularly a conviction that cannot be expunged at a later date. I advise counsel to inform the client of the option to appeal, to determine the person’s wishes about whether to fight on, and then to memorialize the conversation(s) in writing. You may even want a written acknowledgement that the client does not desire to appeal, if that is his or her decision. In this way, you will be well-armed against any tardy accusation that this information was never conveyed to the disgruntled former client and that you lost the right to appeal.

You might protest that the right to appeal was preserved if trial counsel filed a notice of appeal within 30 days of the sentencing determination. However, the failure to file any post-trial motion results in waiver of virtually all appellate issues. If your client wanted to preserve issues falling outside those exceptions, then the forfeiture/waiver rule will likely be invoked against you. You will receive small consolation by asserting that you preserved the client’s rights if his or her best issues cannot be asserted on direct appeal. Then, if he or she finds savvy appellate counsel for another appellate effort, you will still be accused of being ineffective in a post-conviction petition. This collateral proceeding may require your embarrassed testimony at a hearing and will certainly haunt you for years to come due to the slow pace of this type of litigation.

IV. DEADLINES IN CRIMINAL CASES

A. POST-TRIAL MOTIONS

Post-trial motions must be filed following all types of criminal trials in order to preserve issues for appeal, including jury trials, contested bench trials, and stipulated bench trials. Section 116-1 of the Code of Criminal Procedure (725 ILCS 5/116-1) requires the filing of such motions within 30 days of the guilty verdict or finding, with resolution of the motion permitted down the road. While the 30-day limit is not a jurisdictional bar to a later filing, judges retain discretion to deny such motions for failing to comply with the filing deadline.

As an aside, judges sometimes expect counsel to await imposition of sentence before presenting post-trial motions. However, sentencing hearings in felony cases are typically held more than 30 days following the verdict or finding of guilty. Moreover, this is the wrong sequence to follow because the grant of such a motion eliminates the need for any sentencing hearing. In other words, in those rare instances when a new trial is ordered or a conviction is reversed due to insufficient proof of guilt, imposing sentence is a purposeless, time-wasting event. Moreover, if a post-sentencing motion does not accompany a post-trial motion whose filing was delayed until after sentencing, you risk losing the right to appeal, as explained in section IVB. In misdemeanor cases, you can ask the court to delay sentencing until you prepare a post-trial motion, or you can file the post-trial and/or post-sentencing motion within 30 days of sentencing.

Before leaving this topic, take this advice to heart: NO CRIMINAL APPEAL MAY BE FILED BY THE DEFENSE FOLLOWING TRIAL UNTIL THE SENTENCE HAS BEEN IMPOSED. The final judgment in a criminal case is the imposition of the sentence, not the entry of a conviction. While a prematurely-filed notice of appeal can take effect automatically in a civil case, no such saving provision exists in criminal cases. On the contrary, Supreme Court Rule 606(b) states that a notice of appeal filed before resolution of post-trial or post-sentencing motions “have no effect” and that “[a] new notice of appeal must be filed within 30 days following the entry of the order disposing of all timely postjudgment motions.”

B. POST-SENTENCING MOTIONS

Don’t be too hasty to file the notice of appeal after the imposition of sentence because this stage of the case presents yet another opportunity to lose your client’s appellate rights. If legal issues arise during the sentencing hearing, you must raise them in a post-sentencing motion when your client wants to argue them in the Appellate Court. Thus, claims of excessive sentence, improper interpretation of a sentencing statute, and improper introduction of evidence at the hearing will all fall by the wayside for failure to file and present this type of motion.

On the other hand, the filing and timely scheduling of a post-sentencing motion postpones the deadline for filing the notice of appeal. In those instances where you have not filed the post-trial motion before the sentencing hearing (see the preceding section), you should simultaneously file an otherwise untimely post-trial motion at the same time as you file a post-sentencing motion. This simultaneous filing avoids the possibility that you will lose the right to appeal by filing only a post-trial motion. Remember that the filing of the post-sentencing motion postpones the deadline for filing the notice of appeal, regardless of whether you timely filed the post-trial motion. So, even if the trial judge invokes his or her discretion to deny the post-trial motion solely on the basis of an untimely filing, your client’s appellate counsel can argue that this constituted an abuse of discretion and you still preserved the right to appeal.

V. CONTENTS OF THE MOTION IN CRIMINAL CASES

A. POST-TRIAL MOTIONS

If you feel uncomfortable enough with appellate practice to be seeking advice from these articles or from an appellate attorney, you should include all pre-trial and trial issues in the motion that are not frivolous and that were raised in a timely fashion in the trial court. This will provide appellate counsel with the most elbow room to utilize his or her discretion to include those issues with the greatest promise of success and to discard the obvious losers. Each issue in the motion must be specific enough to identify the error allegedly occurring in the trial court. General complaints of error DO NOT preserve issues for appeal and neither do “shotgun” phrases asserting that other, unspecified errors may lurk in the record, but the transcripts have not yet been prepared. Thus, assertions such as “the trial court erred in permitting the introduction of prejudicial evidence by the State” or “‘the defense hereby raises each and every error as may appear from the report of proceedings” will preserve nothing on appeal. Instead, you must make a claim such as “the trial court erred in permitting the introduction of the hearsay evidence of John Smith concerning the statements made to him by the eyewitness to the robbery, Philip Johnson.”

I want to inject a warning here about the contents of all post-trial and post-sentencing motions. In civil cases, motions only seeking clarification of an earlier ruling, without asking to modify or overturn the judgment, are not deemed to be proper post-judgment motions, so they do not toll the time for filing a notice of appeal. I am not aware of any decision ruling that a post-trial or post-sentencing motion in a criminal case failed to satisfy this standard. Could the civil standard be applied in a criminal case? I raised this point in the Supreme Court in the case of People v. Marker, 233 Ill.2d 158 (2009), which was a State appeal of a suppression ruling. I argued that the prosecution failed to allege any legally-sufficient grounds in its motion to reconsider the adverse ruling. The Court’s opinion failed to resolve this claim, so I believe this remains an open question.

B. POST-SENTENCING MOTIONS

The same general advice applies to this type of motion as to the post-trial motion. You cannot expect to preserve an issue of statutory interpretation if you fail to cite the statute in question and some general remarks about the nature of the legal issue the trial court misinterpreted in applying that statute to your client’s case. If you claim that the sentence was excessive, at least indicate the reason for this belief, such as the presentation of substantial mitigation at the sentencing hearing.

VI. CAN YOU AGREE TO DENIAL OF EITHER MOTION?

Short answer: Only if you want to waive issues on appeal. The only case I have located on this question is Page v. Estate of Page, 66 Ill.App.3d 214 (5th Dist., 1978). This opinion in a civil case rules that consenting to denial of a post-trial motion constitutes a waiver of all errors alleged in the document. By consenting to denial of the motion, the movant in Page undermined the purpose of the document, which is to assert error requiring correction by the trial court. Thus, the movant’s surrender deprived the trial court of the opportunity to correct errors, so the reviewing court had nothing to review.

VII. CAN YOU REST ON THE CONTENTS OF THE MOTION?

I know of no authority requiring presentation of oral argument on a post-trial or post-sentencing motion. On the contrary, the cases of (1) People v. Sally, 17 Ill.2d 578, 586 (1959) and (2) People v. Burnett, 237 Ill.2d 381, 382-388 (2010) found no error (1) in the disallowance of argument on a post-trial motion or (2) the decision of trial counsel to forgo argument on a post-sentencing motion. I have witnessed this approach so many times that it seems to be a mantra of lazy lawyering, or perhaps non-lawyering would be a more appropriate term. I’ll never understand why advocates cannot go to the effort of arguing at least one alleged error in a post-trial motion, which normally consumes less than 60 seconds of everyone’s time. And why even take the chance that a total failure to argue constitutes a waiver because it is analogous to consenting to denial of the motion? I note that the Burnett court still went to the trouble of analyzing whether oral argument would have bolstered the defendant’s chances of success in the trial court, rather than entering an unqualified decision that oral argument is never required.

The bottom line: Bite the bullet and file a post-trial motion and, if necessary, a post-sentencing motion.

My next article will discuss the perils of casting the client adrift in civil cases.

Larry Wechter is the primary of the Law Office of Larry Wechter, 1770 S. Randall Road, Suite A, #212, Geneva, Illinois 60134 - website: larrywechterlaw.com - phone: 630/232-4354 - fax: 630/232-4362 - e-mail: larry.wechter@sbcglobal.net. Larry served in the Appellate Prosecutor’s office for three years, prosecuted felony cases in Kane County for 5 years, and has been in private practice since 1987.

The premise underlying this statement, this entire article and the next article is that the client has expressed a desire to appeal -- or at a later date claims to have expressed this desire to his or her trial attorney.

My articles appearing in previous issues of Bar Briefs have touched on various aspects of criminal post-trial and civil post-judgment practice. (See Bar Briefs, editions of June 2006, July 2006, August 2006, November 2006 and December 2006.) However, due to the recurrence of the problem highlighted in this article, I wanted to emphasize its dangers.

Forfeiture is the failure to make the timely assertion of a right, while waiver is the intentional relinquishment or abandonment of a known right. (Compare Buenz v. Frontline Transportation Co., 227 Ill.2d 302, 321 fn. 2 (2008) with People v. Blair, 215 Ill.2d 427, 443-444 (2005), citing United States v. Olano, 507 U.S. 725 (1993).) For our purposes, this terminology is used interchangeably and use of one term or the other is not significant.

See footnote 7 for the narrow exceptions to this general warning.

Strickland v. Washington, 466 U.S. 668 (1984)

Roe v. Flores-Ortega, 528 U.S. 470 (2000); People v. Moore, 133 Ill.2d 331, 336-341 (1990)

Remember that the Illinois Constitution provides clients in civil and criminal cases with the absolute right to pursue a direct appeal to the Appellate Court in order to review any final judgment. 1970 Illinois Constitution, Article VI, section 6; People v. Ross, 229 Ill.2d 255, 268-269 (2008)

The failure to file a post-trial motion only permits raising the following issues on appeal: constitutional issues properly raised at trial and which can be raised in a post-conviction petition, sufficiency of the evidence, and plain error. People v. Enoch, 122 Ill.2d 176, 185 (1988)

People v. Enoch, 122 Ill.2d 176, 185 (1988); People v. O’Connor, 313 Ill.App.3d 134, 137 (2nd Dist., 2000); People v. Jones, 311 Ill.App.3d 433, 435 (5th Dist., 2000)

People v. Harper, 347 Ill.App.3d 499, 502-503 (5th Dist., 2004)

People v. Harper, 347 Ill.App.3d 499, 502-503 (5th Dist., 2004)

People v. Allen, 71 Ill.2d 378, 381 (1978)

See Supreme Court Rule 303(a)(2)

730 ILCS 5/5-4.5-50(d); People v. Reed, 177 Ill.2d 389, 390-395 (1997)

730 ILCS 5/5-4.5-50(d) provides that a final judgment is not considered entered until the post-sentencing motion has been decided.

People v. Thomas, 116 Ill.App.3d 216, 219-220 (1st Dist., 1983); Jackson v. Village of Caseyville, 214 Ill.App.3d 1058, 1060 (5th Dist., 1990). You may get lucky and get a pass on the vagueness of your post-trial motion in the Appellate Court, but I strongly advise you not to adopt this approach. (For an example of an unusual pass, see People v. Young, 118 Ill.App.3d 803, 813 (1st Dist., 1983).)

People v. Goble, 41 Ill.App.3d 491, 499 (2nd Dist., 1976); People v. Rogers, 32 Ill.App.3d 788, 789-790 (4th Dist., 1975)

People v. Bass, 220 Ill.App.3d 230, 238-239 (1st Dist., 1991)

Heiden v. DNA Diagnostics Center, Inc., 396 Ill.App.3d 135, 138-141 (2nd Dist., 2009)