Appellate counsel was not ineffective for failing to pursue appeal when defendant was fugitive

The defendant in People v. Parada, 2019 IL App (1st) 161987, appealed the decision of the trial court dismissing his petition for relief under the Post-Conviction Hearing Act at the second stage of proceedings, arguing on appeal that he made a substantial showing that he was denied his right to effective assistance of appellate counsel where appellate counsel failed to file a docketing statement, a record on appeal, and an appellate brief, resulting in the dismissal of the appeal. Ultimately, because the appeal was pending while appellant was a fugitive, and the appellate court dismissed the appeal through no fault of counsel, the court affirmed the judgment of the circuit court.

Hector Parada was arrested, charged, and convicted in absentia of possession with intent to deliver more than 900 grams of cocaine and sentenced to 60 years’ imprisonment. Id. at ¶ 3-5. Shortly thereafter, defense counsel filed a notice of appeal and indicated in the notice that defendant remained a fugitive. Id. at ¶ 6. The reviewing court dismissed the appeal eight months following the filing of the notice. In its decision, the court stated, “as no docketing statement, no record on appeal, and no brief have been filed, the Appellant’s appeal is dismissed for want of prosecution.” Id. at ¶ 6.

Parada was eventually extradited to Illinois, where he filed a motion to reinstate his appeal; the reviewing court denied the motion and Parada did not appeal that ruling. Id. at ¶ 7. Parada then filed a pro se post-conviction petition alleging that counsel was ineffective for abandoning the appeal, claiming, among other things, that he had instructed counsel not to abandon the appeal.

The petition was advanced to the second stage of proceedings, where a public defender was appointed to represent Parada. While the petition was pending, Parada unsuccessfully filed a motion for a supervisory order with the Illinois Supreme Court requesting it direct the appellate court to reinstate his appeal. Appointed counsel then filed an amended postconviction petition with additional exhibits. The amended petition maintained that appellate counsel’s failure to avoid a dismissal for want of prosecution fell below the reasonable standard of competence of counsel and that prejudice may be presumed in this instance. Appellant attested, in an affidavit, that counsel had agreed to represent him during his appeal, and he believed counsel was doing so. Id. at ¶ 10. The State filed a motion to dismiss, arguing that since petitioner was a fugitive at the time his appeal was dismissed, he forfeited all of his claims. The circuit court dismissed the petition. This appeal followed.

On appeal, Parada argued that his petition demonstrated a substantial showing of a constitutional violation where his appellate counsel was ineffective for failing to pursue the appeal. Id. at ¶ 14. The court conducted its review de novo.

The appellate court held that while “there is no question that appellate counsel failed to perfect the appeal,” “petitioner was a fugitive at the time his appeal was filed and… it is well established that an appellate court may dismiss the appeal of a defendant who is a fugitive from justice during the pendency of his appeal.” Id. at ¶ 24. The rule, known as the “fugitive dismissal rule,” was first applied by the Supreme Court in Smith v. United States, 94 U.S. 97 (1876). The court has since held that the rule applies to both federal and state courts. Id. at ¶ 24.

As such, the court held that in order to establish prejudice, petitioner must make a substantial showing that counsel’s failure to perfect the appeal actually caused the forfeiture of the appeal. Id. at ¶ 26. The appellate court found that Parada failed to make such a substantial showing “where his voluntary status as a fugitive caused the dismissal of the appeal.” Id. at ¶ 26. Further, the court held that the denial of Parada’s motion to reinstate his appeal (as permitted by the court) was within the reviewing court’s discretion and had nothing to do with appellate counsel’s failure to file a docketing statement, record, and brief on behalf of defendant. Id. at ¶ 26.

The court noted that it viewed the trial court’s reference to the failings of appellate counsel not as indication of its reasoning for dismissal, but rather as an “additional reason for the court to exercise its discretion to dismiss the appeal” under the fugitive dismissal rule. Id. at ¶ 27. The court reiterated that the appeal was dismissed absent prejudice, and thus, did not foreclose him from the opportunity for appellate review. Further, the court stated that Parada’s fugitive status was entirely within his own control, and had he promptly availed himself of the court, it is possible that the motion to reinstate the appeal would have been granted. Id. at ¶ 31.

Ultimately, the court concluded that the trial court did not err in dismissing Parada’s post-conviction petition at the second stage because Parada could not demonstrate that appellate counsel’s alleged ineffective assistance was the cause of the dismissal of his appeal (and thus he could not make the requisite substantial showing of a constitutional violation). Id. at ¶ 34.

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