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

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.