Monthly Archives: September 2014

File the notice of appeal now, and ask questions later? (People v. Terefenko, 2014 IL App (3d) 120850)

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People v. Terefenko, 2014 IL App (3d) 120850 (July 24, 2014). Will Co. Appeal dismissed. (Modified upon denial of rehearing 9/12/14.). The defendant, a Polish national, plead guilty to burglary and attempted burglary, received TASC probation, and then violated probation. He was then sentenced to 42 months imprisonment. Defendant was released to ICE, which began removal proceedings.

The defendant filed a post-conviction petition claiming that his attorney failed to advise him of immigration consequences of the plea based on Padilla v. Kentucky. The court dismissed the petition, but the appellate court remanded the case for an evidentiary hearing. By the time the case was remanded for an evidentiary hearing on July 13, 2012, defendant had been deported to Poland and did not appear. He was, however, present by appointed counsel. The court denied the defendant’s petition on August 20, 2012. The court thereafter set a status hearing on September 19, 2012, for defense counsel to file a notice of appeal. Counsel failed to appear, and the court set the case over for the next day, when counsel failed to appear again. The court, sua sponte, entered a written order extending the deadline for filing post-trial motions to October 4, 2012. Counsel also failed to appear at this hearing. The Court appointed the appellate defender and ordered it to file a notice of appeal, with the appellate defender did on October 5, 2010.

The appellate court first had to determine whether it had jurisdiction to hear defendant’s appeal when the notice of appeal was filed more than 30 days after final judgment. Ultimately, the Terefenko court ruled that the notice of appeal was untimely and that it did not have jurisdiction. Illinois Supreme Court Rule 606(b) requires that “[T] he notice of appeal must be filed with the clerk of the circuit court within 30 days after the entry of the final judgment appealed from or if a motion directed against the judgment is timely filed, within 30 days after the entry of the order disposing of the motion.” The court’s analysis was simple. The filing deadline for the notice of appeal was September 19, 2012, thirty days after final judgment. The notice of appeal had not been filed until October 5, 2012, and was therefore untimely. The defendant argued that the filing deadline had been extended by the trial court because the trial court twice extended the deadline for filing of post-trial motions. In support of this argument, the defendant cited People v. Church, 334 Ill. App. 3d 607 (2002), which involved a defendant’s appeal from a guilty plea. The Church court held that “[a] trial court has the inherent authority, upon proper application and showing of good cause, to grant an extension of time for filing a motion to reconsider sentence or a motion to withdraw guilty plea.” Terefenko, ¶ 18, citing id. at 614. The court, even assuming that Church applied to these facts, held that Church did not apply because good cause was not shown for granting an extension of time for filing.

The defendant also argued that the late filing should be excused because the court failed to comply with Supreme Court Rule 651(b) by failing to inform the defendant in Poland that he had the right to appeal. This argument also failed because the Court held that defendant had knowledge of the post-conviction proceedings and that it was his responsibility to stay abreast of them.

The error here could have been easily avoided. It is clear from the plain language of Illinois Supreme Court Rule 606(b) that the notice of appeal must be filed with 30 days. It would not have been difficult to file this single document or ask the court to direct he circuit clerk to file the notice of appeal on the defendant’s behalf. It is unclear why counsel failed to show up to the three status hearings following the denial of the petition, but counsel could have avoid the whole snafu by simply filing the notice of appeal immediately after receiving the written order denying the petition. It is understandable the counsel would have wanted to ask his client whether he wanted to appeal prior to filing the notice, but if he was in Poland and the court did not know where defendant was, how did counsel expect to do that? The more prudent course of action would have been for counsel to file the notice of appeal and then contact the defendant, if possible. If it turns out that the defendant did not want to appeal, then the defendant could seek to have the appeal dismissed on his own motion in the appellate court, after the appellate court had proper jurisdiction over the appeal. If the defendant did want to appeal, then the appellate court could properly consider the appeal on the merits, which it couldn’t do here.

Seventh Circuit punishes serial litigant (Neal v. LaRiva, No. 14-1165 (7th Cir.))

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Neal v. LaRiva, No. 14-1165 (7th Cir.). Decided September 3, 2014. Like so many pro se filings, Neal is a primer on what not do in the trial court and on appeal. You know the appellant is in hot water when the first line of the decision is “Robert Neal seems unable to resist dishonesty.” Neal is currently serving 327 months on wire fraud conviction. He is serving his sentence at FCI Terre Haute in Indiana. Neal had signed a court document with the name of David Nelson, and was sanctioned by the prisoned by revoking his commissary and telephone privileges for 180 days. Neal challenged this decision by filing a writ of habeaus corpus under 28 U.S.C §2241. Neal then moved three times to stay the §2241 by submitting a fake “arbitration agreement” (replete with “gibberish”) to the court, seeking to compel arbitration. The court denied Neal’s motion for stay. The court thereafter denied the §2241 petition on the merits, holding that the impositions of the sanctions did not affect Neal’s custody, making relief under §2241 unavailable.

Neal appealed, but the Seventh Circuit did not merely deny Neal’s meritless appeal. By “his own admission, Neal has over and over again flouted his duty to be honest with the court.” Neal’s course of conduct before this court has earned him a sanction for his repeated filing of frivolous appeals and documents. See Neal v. United States, No. 13-2486 (7th Cir. Oct. 29, 2013), and Neal v. Oliver, No. 13-2598 (7th Cir. Oct. 29, 2013). Neal was fined $500 in these two cases. The Court ordered that until he paid the fines and filing fees for those two cases, “the clerks of all federal courts in this circuit have been directed to return unfiled any papers he submits either directly or indirectly.”

The Court then imposed three additional sanctions:

“First, we are imposing an additional fine of $500 on Neal. Until he pays all outstanding fees and sanctions, clerks of all federal courts within this circuit must return unfiled any papers he submits in any habeas corpus action unless the petition attacks a state-court criminal judgment. See Montgomery v. Davis, 362 F.3d 956, 957–58 (7th Cir. 2004). As in Montgomery, the filing bar imposed by this order applies to any post-judgment motions Neal might try to file in any existing case. After two years, Neal may seek modification or rescission of this order.

Second, we order Neal to show cause within 14 days of this opinion why we should not sanction him under Federal Rule of Appellate Procedure 38 for filing a frivolous appeal.

Third, we order the Clerk of this court to send copies of this opinion and the case file to the United States Attorney for the Southern District of Indiana, so that he may consider the question whether Neal should be prosecuted for the crime of perjury, 18 U.S.C. § 1621, or any other offense that he deems appropriate.”

Neal squarely addresses those litigants who “are unable to resist dishonesty” by imposing harsh sanctions and even recommending perjury charges be filed. Filer beware.

Ineffective assistance claims should be brought in §2255 petitions, not direct appeals (United States v. Rucker, No. 13-2760 (7th Cir.))

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United States v. Rucker, No. 13-2760 (7th Cir.). Decided August 19, 2014. Rucker purchased two kilos of cocaine from a man named Alvarez, and was indicted six weeks later with conspiracy to distribute a controlled substance and other narcotic offenses. Rucker plead guilty to attempting to possess, with the intent to distribute, two kilos of cocaine. An additional fifteen kilos of cocaine were attributed to Rucker at sentencing under relevant conduct. The government proved up the relevant conduct through Alvarez’s testimony at Rucker’s sentencing hearing.

The parties entered an agreed stipulation in which the parties agreed that 3.5 to 5 kilos of cocaine should be attributed to Rucker, instead of the original fifteen. The stipulation resulted in a two-point base offense level increase, resulting in a range of 78 to 97 months. The Court imposed a sentence of 87 months.

Rucker then encountered Alvarez in a holding cell eight days after he was sentenced. Alvarez was shackled but Rucker was not. Predictably, Rucker slammed Alvarez’s head against the wall, which sent Alvarez into convulsions. Rucker was thereafter charged with witness retaliation, and the case went to trial, after which Rucker was convicted. The guideline range was 210 to 262 months, but was capped at 240 by the statutory maximum. The Court sentenced him to 240 months to be served consecutive to his narcotics sentence.

Defendant’s arguments that the evidence was insufficient to sustain a conviction and that the sentence was unreasonable fell flat. Rucker also argued that trial counsel was ineffective because trial counsel stipulated that Alvarez’s testimony at Rucker’s sentencing contributed to a 24-month increase in Rucker’s sentence and that trial counsel failed to move for a judgment of acquittal at the close of evidence. These claims ultimately failed, too.

Before reaching the ineffective assistance claims, the Court correctly noted that ineffective assistance of counsel claims are “ill-suited to resolution on direct appeal, as it typically requires evaluation of the circumstances that confronted counsel and the reasoning that informed his decisions and defense strategy. E.g., United States v. Jones, 635 F.3d 909, 916 (7th Cir. 2011). Consequently, a “defendant who presents an ineffective-assistance claim for the first time on direct appeal has little to gain and everything to lose,” United States v. Taylor, 569 F.3d 742, 748 (7th Cir. 2009) (quoting United States v. Cooke, 110 F.3d 1288, 1299 (7th Cir. 1997)), as the record is unlikely to lend sufficient support to such a claim, and by raising it on direct appeal, the defendant will be foreclosed from pursuing the same claim on collateral review, e.g., United States v. Wallace, 753 F.3d 671, 676 (7th Cir. 2014).”

Despite the veiled warning from the Court at oral arguments, Rucker also raised the ineffective assistance claim on direct appeal. Consequently, the Court considered it and rejected it because its review of the evidentiary support for the claim was limited to what was in the trial court record (even though ineffective assistance claims usually allege error that occurred outside of the record). The Court was therefore hamstrung by the record and denied the claim. Unfortunately for Rucker, because this claim has already been adjudicated, it is res judicata for purposes of a §2255 petition, where the defendant could have fleshed out these claims with affidavits and other evidence that was not in the trial court record before the court.

Rule 651(c) only requires counsel to consult with client about initial petition, not subsequent pro se filings (People v. Bell, 2014 IL App (3d) 120637)

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People v. Bell, 2014 IL App (3d) 120637 (August 21, 2014) Peoria Co. Affirmed. Defendant in this case filed a pro se petition for post conviction relief which advanced to second-stage proceedings. Post-conviction counsel was appointed and filed an amended petition accompanied by a Rule 651(c) certificate. Defendant then filed a series of six pro se amendments to his original pro se petition, introducing new claims not made in the original petition. The trial court struck defendant’s pro se amendments and subsequently dismissed the petition. Defendant appeals, arguing that appointed counsel did not comply with the requirements of Rule 651(c). Bell at ¶ 1.

Unlike at the trial court level and on appeal, defendant’s have no constitutional right to the effective assistance of counsel in connection with post-conviction petitions. The right to counsel, if the defendant’s pro se petition advances to second-stage proceedings, is statutory under the PCHA. Because the defendant is not constitutionally entitled to appointment of counsel under the PCHA, he also therefore has no Sixth Amendment constitutional right to the effective assistance of counsel under Strickland. Instead, The Act requires that counsel provide “a reasonable level of assistance” (distinguishable from effective assistance under Strickland) to petitioners in post-conviction proceedings. People v. Suarez, 224 Ill. 2d 37, 42 (2007). Bell at ¶ 10.

Appointed counsel on appeal certifies that they have provided reasonable assistance to the petitioner by filing what is called a 651(c) certificate, which certifies that defense counsel has consulted with the petitioner to ascertain his or her contentions of deprivation of constitutional rights, has examined the trial court record and report of proceedings, and has “made any amendments to the petitions filed pro se that are necessary for an adequate presentation of petitioner’s contentions.” Ill. S. Ct. R. 651(c).

In this case, appointed counsel filed his 651(c) certificate. However, the petitioner claimed that appointed counsel nonetheless failed to comply with 651(c) by not consulting with the defendant about his subsequent filings. The Bell court, however, disagreed, holding that the spirit, if not the letter, of 651(c) requires defense counsel only to consult with the petitioner about claims made in the original pro se petition which caused the case to advance to second-level proceedings, where counsel was appointed. Requiring defense counsel to consult with the petitioner about every subsequent filing that he made would be unduly burdensome to defense counsel, according to the Bell court.

I agree with the Bell court to the extent that it can be very difficult for appointed counsel to effectively represent a petitioner who insists on filing numerous pro se filings after the case has advanced to second-stage proceedings, for both strategic (controlling the record) and practical (keeping track of the additional filings) reasons, but I disagree with the court’s reasoning that “to agree with defendant’s interpretation of Rule 651(c) would be to impose upon public defenders the burden of consulting with postconviction petitioners each time the petitioner raised a new issue, whether through pro se amendments or letters to counsel. This responsibility would be limited only by the restraint of the incarcerated petitioner. In the present case, counsel would have been required to meet with defendant six separate times. Counsel could have held one consultation following the sixth pro se amendment, but nothing would prevent defendant from filing a seventh, eighth, and ninth amendment after that. Requiring that appointed counsel respond to every contact made by incarcerated petitioners would be inefficient at best and impossible at worst.” ¶ 16.

Counsel doesn’t need to “meet with the defendant” each time the defendant sends him a letter or files something. Counsel can still fulfill his duties under 651(c) by sending the defendant a letter or calling the defendant about the issue he wants to raise. See Ill. S. Ct. R. 651(c) (“the attorney has consulted with petitioner by phone, mail, electronic means or in person to ascertain his or her contentions of deprivation of constitutional rights.”). It doesn’t take much effort to at least consult with the defendant by mail about the issue that he wants to raise. Defense counsel doesn’t have to raise the issue in the amended filing; but I think both defendant and defense counsel are better off if they at least discuss it by mail. The defendant is better off because he feels like he is being represented (reasonably, effectively, or otherwise) and participating in his own defense, and the defense lawyer is better off because his client trusts that his attorney is acting in his best interests. Furthermore, that conversation could lead to a meritorious issue being raised that was not raised in the additional petition. This would benefit all.