Court finds counsel ineffective for failing to appeal defendant’s sentence.

The defendant in People v. Cuevas, 2018 IL App (2d) 151100, decided on June 18, 2018, pled guilty to drug charges and was sentenced to prison. The defendant told his defense lawyer to appeal his sentence, but his defense lawyer failed to do so. The defendant filed a post-conviction petition, which was denied.

The issue in this case was whether the defendant’s lawyer provided ineffective assistance of counsel to him by failing to file an appeal of his client’s sentence. The appellate court held that he did.

The Cuevas court indicated that “when counsel has reason to know that a defendant is interested in securing relief from a conviction, counsel has a duty to consult with the defendant about pursuing an appeal…When the conviction arises from a guilty plea, that duty also necessarily entails a duty to consult about the necessary steps that must be taken in order to appeal, such as moving to withdraw the plea or to reconsider the sentence.” Id. at ¶ 26 (citations omitted).

In this case, the defendant “specifically asked his counsel to appeal the sentence and that counsel did not do so and did not consult with him about it. He further averred that family members attempted to reach his counsel about an appeal and were ignored. At the second stage, those allegations are taken as true. Thus, defendant made a substantial showing that his counsel’s performance fell below an objective standard of reasonableness.” Id. at ¶ 27. The court found that the defendant was prejudiced by his defense lawyer’s failure to appeal the defendant’s sentence, and reversed the trial court’s order denying the defendant’s post-conviction petition and remanded the case for  a third-stage evidentiary hearing.

Sealing cases when still owing fines might get easier with Ill. HB 5341

Legislation recently passed both chambers that would allow someone to file a sealing petition even if they owed fines on that case. Previously, that was not allowed. HB5341 states, in relevant part, that:

“Notwithstanding any other provision of law, the court shall not deny a petition for sealing under this Section because the petitioner has not satisfied an outstanding legal financial obligation established, imposed, or originated by a court, law enforcement agency, or a municipal, State, county, or other unit of local government, including, but not limited to, any cost, assessment, fine, or fee. An outstanding legal financial obligation does not include any court ordered restitution to a victim under Section 5-5-6 of the Unified Code of Corrections, unless the restitution has been converted to a civil judgment. Nothing in this subparagraph (C) waives, rescinds, or abrogates a legal financial obligation or otherwise eliminates or affects the right of the holder of any financial obligation to pursue collection under applicable federal, State, or local law.”

If this legislation becomes law, this will positively impact those who wish to have their cases sealed even when they still owe fines, fees, and/or costs on their case. To see the full text of the bill, click here.