HOW MANY LAWYERS DOES IT TAKE TO FILE A CRIMINAL APPEAL

This article was published in Bar Briefs, the monthly journal of the Kane County Bar Association in March, 2002

Although the title sounds like a tasteless joke from the 1980's (or was it the '70's??), this article illustrates the perils of lack of communication between trial and appellate counsel. Also, I will discuss some of the rules governing the timing of filing of notices of appeal in criminal cases. A recent Second District Rule 23 order dealt with a number of errors that can cause loss of appellate jurisdiction and the manner of regaining the right to appeal. The applicable rules of law are well settled, so that the non-precedential nature of the decision will not undermine the lessons of this case.

Trial Lawyer - Error #1

In this real case, the first legal mistake concerns the relationship between filing a notice of appeal and filing a motion to reconsider sentence. Section 5-8-1(c) of the Unified Code of Corrections (730 ILCS 5/5-8-1(c)) requires the filing of a motion to reconsider sentence within 30 days of the entry of the sentencing order. The failure to file this type of motion results in the waiver of most claims of sentencing error on appeal.

But for years past, a routine developed in trial courts for defense counsel to submit the notice immediately or shortly after imposition of the sentence. In this situation, defense counsel filed the notice of appeal, but filed a motion to reconsider the sentence on a subsequent date. The precedent in the Second District and Rule 606(b) confirm that the filing of this type of motion implicitly dismisses the notice of appeal. So, at this point in the case, the request to reconsider the sentence divested the Appellate Court of jurisdiction.

Trial Lawyer - Error #2

At this point in the proceedings, the slate has been wiped clean regarding the right to appeal. Remember that nothing has been lost at this stage, as long as appellate jurisdiction is invoking a second time once the motion to reconsider is resolved. But the second error in this case resulted from the failure to perfect appellate rights after the motion was denied. Rule 606(b) requires the filing of a notice within 30 days of a ruling on the motion, despite the filing of a prior notice of appeal. Unfortunately, a second notice was not filed, eventually resulting in dismissal of the appeal.

However, the appeals process continued at the Second District in Elgin. In other words, the Court does not have any gatekeeper who determines at an early stage of the case that a jurisdictional problem exists. Instead, many months will pass before the jurisdictional problem gains the Court's attention.

Trial Lawyer - Error #3

Since trial counsel failed to recognize the need to file a second notice of appeal, he also failed to notify the appellate attorney that the reconsideration motion was denied. Apparently trial counsel assumed that the appellate lawyer was automatically responsible for all further proceedings.

Lawyer #2 - Error on Appeal

Though this situation might seem bleak for preserving the right to appeal, all has not been lost. Since the Appellate Court has not yet reviewed the case or received any motion to dismiss the appeal, the circuit clerk has continued with completion of the record on appeal. Due to the timely filing of the motion to reconsider sentence, the record on appeal contains a copy of that motion. At this juncture, appellate counsel has the obligation to ensure the perfection of appellate jurisdiction, because a special rule in criminal cases permits the late filing of a notice of appeal. Rule 606(c) grants an additional 6 months to move to file a notice beyond the normal 30-day time limit.

Apparently appellate counsel assumed that the appeal was properly perfected. After all, how can counsel on appeal be faulted for assuming that the notice was properly filed? Isn't trial counsel responsible for timely filing of the notice?

Perhaps these assumptions would be reasonable if the sentence reconsideration request was not included in the record. But here, the appellate attorney actually must have seen the motion in the record, since he completed the brief on behalf of the defendant. In fact, the brief was filed before the deadline expired for filing a late notice of appeal. Despite appellate counsel's obvious awareness of that motion, he did not confirm whether the motion was ever ruled on or whether a second notice was filed.

Lawyer #3 - Harmless Error

Due to these jurisdictional problems, the Appellate Court dismissed the appeal. Then the Appellate Defender attempted to reinstate the appellate process by requesting a ruling on the motion to reconsider. Unbeknownst to this second appellate attorney, the motion had already been ruled on. In response to the Appellate Defender's efforts, a second trial lawyer noticed that the motion for reconsideration was already denied. So, he promptly filed a second notice of appeal. But by now, more than 30 days had elapsed since the decision on the sentence reconsideration motion, plus an additional 6 months beyond the normal 30-day deadline. At this stage, though a genuine effort was made to save the appeal, a late notice cannot confer jurisdiction on the Appellate Court. But, since this mistake did not worsen the situation, the only valid criticism of lawyer #3 is that the defendant himself had to save his appellate rights that the lawyers nearly lost for good.

Non-lawyer preserves appeal

The defendant now filed a pro se post-conviction petition pursuant to 725 ILCS 5/122-1 and 122-2. He raised a number of issues, including the failure of his trial and appellate attorneys to perfect his appeal. Since ineffective assistance of counsel amounts to a constitutional violation, the defendant properly raised this issue by a timely-filed petition.

Lawyer #4 - Judicial Error

The circuit court conducted a hearing on the defendant's petition. Instead of addressing whether the defendant made a showing of constitutional error, the judge denied the petition by ruling on the substantive arguments of trial error.

Why wasn't the lower court's ruling on the allegations of trial error sufficient to amount to an appeal? First, denial of the petition here amounted to nothing more than a second motion for a new trial. This procedure still resulted in denial of the right to appeal, that is, resolution of the claims of trial error by the Appellate Court. Moreover, since post-conviction proceedings are restricted to a review of constitutional claims, a defendant must be allowed a direct appeal in order to afford review of any claim of error, constitutional or not.

Right of Appeal Preserved on Appeal of Post-Conviction Ruling

On appeal from the denial of the post-conviction petition, the State conceded the ineffectiveness of both trial and appellate counsel, but still argued that the claims had been resolved against the defendant at the post-conviction hearing. This argument could not prevail since prejudice is presumed from the mere denial of the right of direct appeal. In this case, the remedy afforded was a remand to the trial court in order to grant leave to file a late notice of appeal.

Suggestions

Of course, all of these problems could have been avoided by the filing of a notice of appeal following denial of the motion to reconsider sentence. When in doubt, just file it twice!!!! Though you may miscalculate as to which notice is effectual, you cannot harm the right to appeal by filing more than one notice.

Also, I think this unnamed case is a perfect illustration of how we lawyers sometimes compartmentalize our thinking about a problem. Even the attorneys who recognized the jurisdictional problem with the direct appeal failed to consider another avenue of relief, such as a post-conviction petition. Sometimes the best second effort is a re-evaluation of the situation that spawns a new approach to the problem, rather than trying the same solution repeatedly to no avail. The client should not have to wait for years and file a collateral post-conviction case in order to preserve this basic right.

Finally, we sometimes assume that each lawyer in this process plays a discrete role in the appeal. But this case illustrates that both trial level and appellate level attorneys may be responsible for preserving the client's rights. So, isn't it worth at least one telephone call to confirm that jurisdiction has been firmly established?

Larry Wechter