PRACTICAL APPEALS ADVICE - Part Two - TO APPEAL OR NOT TO APPEAL

This article was published in Bar Briefs, the monthly journal of the Kane County Bar Association in January, 2006

December's article discussed the factors an attorney should consider in deciding whether to appeal a civil or criminal case. This month, I discuss the advice you should give to your client and other avenues to obtain relief from a judgment other than a direct appeal.**

Advice to Client

Do not assume that clients understand the basic concept of an appeal of right. Prospective appellants frequently ask me, "Will the [Appellate] Court take my appeal?" You need to explain that the Court will indeed take the case and issue a decision on the merits, barring any unforeseen dismissal of the appeal for lack of appellate jurisdiction.

Another widely held misconception is the belief that the filing of an appeal results in a stay of execution on the judgment. In contrast to the filing of a post-trial motion, which stays enforcement of a civil judgment,29 the filing of a notice of appeal has no effect on enforcement unless the court issues a stay. The rules require the posting of an appeal bond in cases involving money judgments in order to obtain the stay.30 In criminal cases, the return of a finding or verdict of guilty ordinarily requires revocation of the defendant's bond, so that the equivalent of a stay is needed to halt the application of handcuffs to your client's wrists.31

You should also advise the client that appeals are always uphill battles. After all, the judge or jury disagreed with your factual and legal arguments and you must overturn an adverse judgment. The presumption of innocence no longer applies in criminal cases and the Appellate Court will view the evidence in the light most favorable to the State, even when reviewing the sufficiency of the evidence to convict beyond a reasonable doubt.32

I always shy away from beating my chest and telling clients that they have a great chance of success on appeal. In my experience, many pitfalls in the trial and appellate process make it easy to lose the appeal, among them questions about appellate jurisdiction, waiver of issues in the trial court, an incomplete record of trial level proceedings, inadequately preserved issues, the application of harmless error rules, and the impact of an opponent's cross-appeal. Consequently, I never promise more than my best efforts and the application of my experience in this field. I hope you will do the same if you are tempted to accept an appeal.

Other options

The direct appeal is normally the only appropriate avenue for vindicating your client's rights following defeat in a case-dispositive motion or trial. Pursuing a direct appeal can avoid claims of waiver because it usually follows hot on the heels of ripe, fully-adjudicated issues. However, on occasion, other avenues are available before, after or contemporaneous with the filing of a direct appeal.

In contrast to an appeal, new actions may be filed under section 2-1401 of the Code of Civil Procedure (the old section 72 petition) with regard to both civil and criminal cases. The purpose of this action is to bring to the trial court's attention matters that would have prevented entry of the adverse judgment if they had been known to the judge at the time of entry of the order. The action permits the losing party to obtain relief where more than 30 days has passed since the entry of judgment, but normally not more than two years later. The defendant in a criminal case might claim that potentially exonerating evidence was unknown at the time of trial or a defendant in a civil action might claim that the trial court lacked personal jurisdiction to enter a judgment.33 This provision usually requires a showing of the existence of a meritorious defense, diligence in presenting the claim in the original action, and diligence in filing the new action. These requirements are excused when the action attacks a void judgment.34 Also, the courts relax these requirements when necessary to do substantial justice under the particular circumstances of the case.35

In criminal cases, you may file a collateral attack on the judgment by means of a pleading called a post-conviction petition. You must allege a violation of a state or federal constitutional right that was not raised and could not have been raised at trial.36 This is normally the appropriate avenue to follow if the trial attorney was ineffective for failing to present exonerating evidence, failing to assert an otherwise successful defense, and so on. Obviously, an ineffective assistance claim cannot be asserted against yourself if you were the trial attorney.37

Many people are familiar with the term "habeas corpus", even if they do not understand its significance. In criminal cases, this type of remedy involves some fundamental flaw in the court's jurisdiction over the accused.38

Adverse rulings in the cases just mentioned may permit the filing of direct appeals of right.39

Interlocutory Appeals and Cross-Appeals

While I do not intend for this article to be exhaustive on all appellate options, you should be aware that some appeals are permitted prior to the entry of a final judgment. Some of these "interlocutory"40 appeals are allowed of right and some require the permission of the reviewing court. In civil cases, some examples of interlocutory appeals of right are those taken from orders granting injunctions prior to resolution of the merits of the suit41 and appeals from orders terminating parental rights.42 Examples of permissive interlocutory orders include those granting new trials43 and granting motions to disqualify attorneys for parties.44 In criminal cases, interlocutory appeals are granted of right regarding a limited number of issues. Examples of criminal interlocutory appeals include review of denials of defense motions to bar prosecution on grounds of double jeopardy,45 denials of defense bail motions,46 State appeals from the suppression of evidence,47 and appeals by the prosecution or the defense from findings of unfitness.48

Your opponent in a civil case may file a cross appeal or other parties in multi-party cases may file separate appeals in certain circumstances.49 In most two-party litigation, this does not occur because one side is clearly the winner and the opponent is the loser. In this situation, the winning side is not required to file a cross-appeal because the judgment can be affirmed on any basis developed in the record.50 However, relief can be entered for or against both parties, such as by entering judgments for both parties that offset one another in whole or in part. In those instances, both sides may appeal from the respective judgments entered against them.

Even more options

The last article in this series will discuss the availability of further appeal after a loss in the Appellate Court. In limited circumstances, appeals of right may lie from the circuit court or the Appellate Court to the Supreme Court51 and there are provisions permitting discretionary appeals from the circuit court to the Supreme Court.52 However, outside those limited circumstances, appeals are not allowed as of right, but require the Supreme Court of Illinois or the Supreme Court of the United States to accept the case on a petition requesting further review.53 You simply need to know that a loss at the first stage of appeal is not necessarily the end of the litigation saga.

** This article from the January issue of Bar Briefs is re-printed with revisions due to a substantive error appearing in the text. I regret any confusion this may have caused.

Larry Wechter is the primary of the Law Offices of Larry Wechter, 1770 S. Randall Road, Suite A, #212, Geneva, Illinois 60134, phone: 630/232-4354, e-mail: larry.wechter@sbcglobal.net. Larry served as a felony prosecutor in Kane County for 5 years and has been in private practice since 1987.

29. 735 ILCS 5/2-1202(d), 2-1203(b)

30. Supreme Court Rule 305(a)

31. 725 ILCS 5/110-6.2(a), Supreme Court Rule 609

32. People v. Ehlert, 211 Ill.2d 192, 202 (2004)

33. People v. Waters, 328 Ill.App.3d 117, 126-129 (1st Dist., 2002); Estate of Barth, 339 Ill.App.3d 651, 663 (1st Dist., 2003)

34. Sarkissian v. Chicago Board of Education, 201 Ill.2d 95, 104-105 (2002)

35. Application of County Treasurer, 347 Ill.App.3d 769, 774 (1st Dist., 2004)

36. People v. Tenner, 206 Ill.2d 381, 392 (2003)

37. People v. Lawton, 212 Ill.2d 285, 295-296 (2004)

38. 735 ILCS 5/10-124; People v. Purnell, 356 Ill.App.3d 524, 528 (4th Dist., 2005)

39. Supreme Court Rule 304(b)(3) (section 2-1401 case); Supreme Court Rule 651(a) (post-conviction proceeding); People v. Kankakee State Hospital Staff, 30 Ill.App.2d 151, 154-155 (2nd Dist., 1961) (appeals are available only for certain habeas cases, not all of them)

40. Your Latin training reminds you that the word "interlocutory" means "to speak between," that is, "to interrupt."

41. Supreme Court Rule 307(a)(1)

42. Supreme Court Rule 307(a)(6)

43. Supreme Court Rule 306(a)(1)

44. Supreme Court Rule 306(a)(7)

45. Supreme Court Rule 604(f)

46. Supreme Court Rule 604(c)

47. Supreme Court Rule 604(a)(1)

48. Supreme Court Rule 604(e)

49. Supreme Court Rule 303(a)(3)

50. People ex rel. Department of Public Health v. Wiley, 348 Ill.App.3d 809, 817 (1st Dist., 2004)

51. Supreme Court Rules 302(a), 316, 317

52. Supreme Court Rules 302(b), 603, 612(b)

53. For example, see Supreme Court Rules 315, 604(a)(2); 28 U.S.C. 1257, 2101; U.S. Supreme Court Rule 13, 28 U.S.C.