Appellate Court Questions Whether Appellate Defender’s Office Should Handle Post-Conviction Appeals

The basic facts of People v. Buchanan, 2019 IL App (2d) 180194 are not very notable. The defendant was convicted of first degree murder and sentenced to life imprisonment. The defendant later filed a 2-1401 petition, alleging that his conviction and sentence were void because an associate judge presided over his case. The petition was dismissed, the defendant appealed, and the Office of the State Appellate Defender (OSAD) was appointed.

OSAD then moved to withdraw in the Appellate Court under Pennsylvania v. Finley and People v. Lee, arguing that Buchanan’s claim was properly dismissed by the trial court. What the Appellate Court said in dicta in response to OSAD’s motion was very notable, though:

“OSAD should have moved to withdraw not under Finley and Lee, but on the ground that the trial court erred in appointing it. Section 10(a) of the State Appellate Defender Act (725 ILCS 105/10(a) (West 2016)) “clearly limits appointment of [OSAD] to appeals from criminal and delinquent minor proceedings” (Alexander v. Pearson, 354 Ill. App. 3d 643, 646 (2004)). Accordingly, a trial court has no authority to appoint OSAD to an appeal from a civil proceeding. See id. at 647 (habeas corpus). “[A]n action brought under section 2- 1401 is a civil proceeding *** even when it is used to challenge a criminal conviction or sentence.” People v. Vincent, 226 Ill. 2d 1, 6 (2007). Thus, here, there was no statutory ground for the trial court’s appointment of OSAD, which should have moved to withdraw on that basis. In light of the “tremendous workload faced by OSAD” and the oft-repeated concerns about the resulting delays (People v. Cisco, 2019 IL App (4th) 160515, ¶ 46), OSAD should ensure that it allocates its scarce resources only to appeals to which it is validly appointed.”

Appeals from 2-1401 petitions and post-conviction petitions (which are also civil in nature) constituent a very significant portion of OSAD’s case load. The Second District suggests here that OSAD should not be accepting these cases because they are civil in nature. The court rarely comments on such issues, especially on its own initiative. It will be interesting to see if the court continues to comment on these issues moving forward.

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