{ "id": 894457, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KEVIN KELLERMAN, Defendant-Appellant", "name_abbreviation": "People v. Kellerman", "decision_date": "2003-03-05", "docket_number": "No. 3-01-0713", "first_page": "781", "last_page": "788", "citations": [ { "type": "official", "cite": "337 Ill. App. 3d 781" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "336 N.E.2d 50", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1975, "pin_cites": [ { "page": "54-55" } ], "opinion_index": 0 }, { "cite": "32 Ill. App. 3d 765", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2796370 ], "year": 1975, "pin_cites": [ { "page": "771" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/32/0765-01" ] }, { "cite": "135 N.E. 77", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1922, "opinion_index": 0 }, { "cite": "302 Ill. 624", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5010949 ], "year": 1922, "opinion_index": 0, "case_paths": [ "/ill/302/0624-01" ] }, { "cite": "674 N.E.2d 844", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1996, "opinion_index": 0 }, { "cite": "285 Ill. App. 3d 802", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1295641 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/ill-app-3d/285/0802-01" ] }, { "cite": "473 N.E.2d 1246", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "104 Ill. 2d 504", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3147214 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/ill-2d/104/0504-01" ] }, { "cite": "466 U.S. 668", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6204802 ], "weight": 3, "year": 1984, "opinion_index": 0, "case_paths": [ "/us/466/0668-01" ] }, { "cite": "778 N.E.2d 218", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2002, "opinion_index": 0 }, { "cite": "334 Ill. App. 3d 156", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 521932 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/ill-app-3d/334/0156-01" ] }, { "cite": "773 N.E.2d 1", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2001, "opinion_index": 0 }, { "cite": "332 Ill. App. 3d 189", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1034168 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/ill-app-3d/332/0189-01" ] }, { "cite": "651 N.E.2d 117", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "165 Ill. 2d 472", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 483555 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/ill-2d/165/0472-01" ] }, { "cite": "321 N.E.2d 473", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1975, "pin_cites": [ { "page": "474" } ], "opinion_index": 0 }, { "cite": "24 Ill. App. 3d 794", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5308569, 5310902 ], "weight": 2, "year": 1975, "pin_cites": [ { "page": "795-96" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/24/0794-02", "/ill-app-3d/24/0794-01" ] }, { "cite": "240 N.E.2d 627", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1968, "opinion_index": 0 }, { "cite": "40 Ill. 2d 458", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2857007 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/ill-2d/40/0458-01" ] }, { "cite": "645 N.E.2d 590", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "268 Ill. App. 3d 810", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 381874 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/ill-app-3d/268/0810-01" ] }, { "cite": "538 N.E.2d 237", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1989, "opinion_index": 0 }, { "cite": "182 Ill. App. 3d 396", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2619124 ], "weight": 2, "year": 1989, "opinion_index": 0, "case_paths": [ "/ill-app-3d/182/0396-01" ] } ], "analysis": { "cardinality": 582, "char_count": 13951, "ocr_confidence": 0.734, "pagerank": { "raw": 5.207966869300525e-08, "percentile": 0.32660687939721583 }, "sha256": "86ce5593337fe32d673583c77b2bf40a0a91aa693d92600332c4b870ed6d984b", "simhash": "1:b27aa44f5afb09f3", "word_count": 2286 }, "last_updated": "2023-07-14T14:38:38.563173+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KEVIN KELLERMAN, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE HOLDRIDGE\ndelivered the opinion of the court:\nThe defendant, Kevin Kellerman, pled guilty to arson (720 ILCS 5/20 \u2014 1(a) (West 1998)) and was sentenced to 12 years\u2019 imprisonment. The defendant did not file a postplea motion or bring a direct appeal. He filed a pro se postconviction petition (725 ILCS 5/122 \u2014 1 et seq. (West 2000)), which was dismissed at the first stage of the proceedings. On appeal, the defendant argues that the trial court erred in summarily dismissing his petition because: (1) his trial counsel was ineffective by advising him that a police offer of leniency, which led to his confession, had no legal effect; and (2) his trial counsel\u2019s ineffectiveness caused his guilty plea to be involuntary. The State contends that (1) we lack jurisdiction because the defendant\u2019s notice of appeal was untimely filed; and (2) the defendant\u2019s arguments are waived because he failed to raise them in a postplea motion or a direct appeal. We (1) rule that we have jurisdiction; (2) hold that the defendant\u2019s arguments are not waived; and (3) reverse and remand for further postconviction proceedings.\nBACKGROUND\nThe defendant was charged with committing arson. At his plea hearing, he proposed to plead guilty pursuant to a fully negotiated agreement with the State. The prosecutor stated that because the defendant previously had been convicted of two burglaries, he was eligible to be sentenced as a Class X offender. The defendant agreed to plead guilty in exchange for the State\u2019s recommendation of a 12-year prison sentence.\nThe State presented its factual basis for the plea. The prosecutor stated that the Bolingbrook fire department extinguished a fire at a residence on June 30, 1999. Following the police investigation of the fire, the defendant was arrested for arson and was advised of his Miranda rights. In a tape-recorded statement, he admitted to the police that he had set the house on fire.\nThe trial judge accepted the defendant\u2019s plea under the terms of the agreement. During the sentencing hearing, the defendant\u2019s trial counsel stated that she had listened \u201cto a tape where he made statements\u201d to the police. The trial court sentenced the defendant to 12 years\u2019 imprisonment. The defendant did not pursue an appeal by filing the requisite postplea motion followed by an appeal from the disposition of such a motion. See 188 Ill. 2d R. 604(d).\nThe defendant filed a pro se postconviction petition in which he alleged that his guilty plea was involuntary because of trial counsel\u2019s ineffective assistance. In his \u201cMemorandum In Support\u201d of his petition, he claimed that during his interrogation, the police told him \u201cthe State\u2019s Attorney was on a phone ready to offer [him] a negotiated plea of three or four years in exchange for a confession.\u201d He submitted that the tape of his confession would support this contention.\nThe defendant claimed that he told his trial counsel about the police offer being recorded on the tape. According to the defendant, his attorney told him that \u201cno police was able to make any negotiations,\u201d and that the defendant should accept the State\u2019s offer of 12 years\u2019 imprisonment because \u201cit was the best offer he would receive.\u201d He contended that, because of his attorney\u2019s ineffectiveness, his guilty plea was involuntary and that he should be allowed to withdraw his plea.\nOn August 2, 2001, the trial court dismissed the defendant\u2019s petition as \u201cpatently without merit and fail[ing] to raise a sufficient constitutional question upon which relief can be granted.\u201d On August 23, 2001, the defendant placed a pro se document in the prison mail system titled \u201cNotice of Filing Notice of Appeal.\u201d In this document, he stated, \u201cThe Defendant wishes to file an Appeal of the Circuit courts [sic] Order of Dismissal August 2,2001 [sic] in which the Post-Conviction relief and cause was dismissed.\u201d The defendant\u2019s court-appointed appellate defender also filed a \u201cNotice to Appeal\u201d on behalf of the defendant on September 5, 2001.\nANALYSIS\nI. Jurisdiction\nThe State contends that we lack jurisdiction because the defendant\u2019s September 5, 2001, notice of appeal was untimely. The State also argues that the pro se document the defendant placed in the prison mail system on August 23, 2001, was insufficient as a notice of appeal. We disagree with the latter of the State\u2019s two assertions.\nThe timely filing of a notice of appeal is necessary for an appellate court to have jurisdiction over a criminal matter. People v. Blanchette, 182 Ill. App. 3d 396, 538 N.E.2d 237 (1989). To be timely, the notice of appeal must be filed with the trial court within 30 days of a final order. 188 Ill. 2d R. 606(b). A notice of appeal mailed within the 30-day period is timely filed. Blanchette, 182 Ill. App. 3d 396, 538 N.E.2d 237.\nSupreme Court Rule 606(d) (188 Ill. 2d R. 606(d)) lists the elements to be incorporated in a notice of appeal and states that the document should substantially be in that form. Where a deficiency is one of form rather than substance, an appellate court has jurisdiction if (1) the notice fairly and accurately advises the appellee of the nature of the appeal; and (2) the appellee is not prejudiced by the deficiency in form. People v. Clark, 268 Ill. App. 3d 810, 645 N.E.2d 590 (1995).\nThe State contends that the document the defendant filed on August 23, 2001, cannot be construed as a notice of appeal. For this proposition, the State cites People v. Sanders, 40 Ill. 2d 458, 240 N.E.2d 627 (1968), and People v. Feigleson, 24 Ill. App. 3d 794, 321 N.E.2d 473 (1975). In Sanders, our supreme court ruled that the defendant\u2019s request for a transcript of the trial proceedings was insufficient to function as a notice of appeal. In Feigleson, the appellate court held that the text of the defendant\u2019s document, titled \u201cNotice Of Appeal For New Trial,\u201d was in the form of a posttrial motion seeking relief from the trial court rather than from the appellate court. Feigleson, 24 Ill. App. 3d at 795-96, 321 N.E.2d at 474.\nIn this case, the document the defendant placed in the prison mail system on August 23, 2001, cannot be construed as either a request for a transcript or a motion seeking relief from the trial court. Therefore, we find the holdings of Sanders and Feigleson to be inapposite to the present case.\nAlthough the defendant\u2019s August 23, 2001, document did not contain all of the elements listed in Supreme Court Rule 606(d), it substantially complied with the rule. The document fairly and accurately advised the State of the nature of the appeal. Furthermore, the State was not prejudiced by the document\u2019s deficiency in form. We liberally construe the August 23, 2001, document as the defendant\u2019s notice of appeal.\nBecause the defendant\u2019s August 23, 2001, notice of appeal was placed in the mail within 30 days of the order dismissing the defendant\u2019s postconviction petition, it was timely filed. Thus, we have jurisdiction to consider the defendant\u2019s appeal.\nII. Waiver\nThe State submits that the defendant has waived his arguments by failing to raise them in a postplea motion or a direct appeal. Specifically, the State contends that the defendant previously could have raised his trial counsel\u2019s ineffectiveness because the record indicates that his trial counsel heard the tape of his confession. The State infers that if the tape contained the police offer of leniency as alleged by the defendant, his trial counsel would have challenged the voluntariness of his confession in the trial court.\nThe principles of res judicata and waiver limit the scope of appeals from postconviction proceedings. Issues a defendant could have raised on direct appeal but did not are considered waived. People v. Hampton, 165 Ill. 2d 472, 651 N.E.2d 117 (1995). The waiver rule does not apply if the factual basis for a claim of ineffectiveness is not contained within the original trial court record and, therefore, could not have been considered on direct appeal. People v. Burns, 332 Ill. App. 3d 189, 773 N.E.2d 1 (2001). To perfect an appeal from a judgment based on a guilty plea, the defendant first must file an appropriate postplea motion and then appeal from the judgment disposing of that motion. 188 Ill. 2d R. 604(d).\nIn the present case, the defendant contends that his trial counsel was ineffective because she erroneously advised him that the police offer of leniency had no legal effect. The State is correct that the defendant did not raise this issue in a postplea motion or a direct appeal. The threshold question, however, is whether the defendant could have raised this issue in such proceedings.\nDuring the sentencing hearing, the defendant\u2019s trial counsel stated she had listened to the tape in which the defendant made statements to the police. However, the record does not indicate whether defense counsel heard a police offer of leniency while listening to the tape and, if so, whether defense counsel advised the defendant that such an offer of leniency had no legal effect. Because the facts regarding the defendant\u2019s postconviction allegation of ineffective assistance were not in the trial record, the defendant could not have raised his postconviction arguments in a posttrial motion or a direct appeal. Therefore, the defendant\u2019s issues are not waived.\nIII. Postconviction Allegations\nA. Ineffective Assistance\nThe defendant contends that the police told him the State\u2019s Attorney was on the phone prepared to offer him a three- or four-year prison sentence in exchange for his confession. He argues that his trial counsel was ineffective by erroneously advising him that this police offer of leniency had no legal effect. He submits that the trial court erred in dismissing his postconviction petition because it stated the gist of a constitutional claim for ineffective assistance of trial counsel.\nA postconviction petition may be dismissed at the first stage as frivolous or patently without merit only if the allegations in the petition, taken as true and liberally construed, fail to present the gist of a constitutional claim. The \u201cgist\u201d standard presents a low threshold in which the petitioner need only present a limited amount of detail. The standard of review for the first-stage dismissal of a defendant\u2019s post-conviction petition is de novo. People v. English, 334 Ill. App. 3d 156, 778 N.E.2d 218 (2002).\nTo determine whether a defendant has been denied his sixth amendment right to effective assistance of counsel, the defendant must show (1) that his counsel\u2019s representation fell below an objective standard of reasonableness; and (2) that it is reasonably probable that his case was prejudiced by his counsel\u2019s unprofessional errors. Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984); People v. Albanese, 104 Ill. 2d 504, 473 N.E.2d 1246 (1984).\nIf a defendant\u2019s confession was not voluntarily given, it is inadmissible at trial. A confession was voluntary if it was made freely and without compulsion or inducement of any sort. To constitute an offer of leniency that renders a confession inadmissible, a police statement must be coupled with a suggestion of a specific benefit that will follow if the defendant confesses. People v. Johnson, 285 Ill. App. 3d 802, 674 N.E.2d 844 (1996).\nIn People v. Heide, 302 Ill. 624, 135 N.E. 77 (1922), the defendant was told by police officers that if he confessed, he would be taken to the State\u2019s Attorney, who would do the best for him. The Illinois Supreme Court ruled that the defendant\u2019s confession was not admissible.\nIn People v. Ruegger, 32 Ill. App. 3d 765, 771, 336 N.E.2d 50, 54-55 (1975), police officers told the defendant that they would \u201cgo to bat\u201d for him on such matters as a recognizance bond and probation if he confessed. The Ruegger court affirmed the suppression of the defendant\u2019s confession.\nIn the present case, the defendant\u2019s petition alleges that the police told him that the State\u2019s Attorney was on the phone and was prepared to offer him three or four years\u2019 imprisonment if he confessed. Taken as true and liberally construed, such a police statement was an inducement for the defendant to confess in exchange for the specific benefit of a State\u2019s Attorney\u2019s negotiated plea agreement. If the defendant\u2019s allegation is true, his confession was involuntarily given and was inadmissible at trial.\nIf we consider the defendant\u2019s postconviction allegations as true, the defendant stated the gist of a constitutional claim for ineffective assistance of trial counsel. If the defendant\u2019s confession was involuntarily given, his trial counsel\u2019s performance fell below an objective standard of performance and his trial was prejudiced by his counsel\u2019s failure to challenge the admissibility of his confession. Therefore, as a matter of law, the trial court erred by dismissing the defendant\u2019s post-conviction petition at the first stage of the proceedings.\nWe emphasize that we express no opinion regarding the truth of the defendant\u2019s allegations. We only accept his allegations as true and construe them liberally under the \u201cgist\u201d standard for first-stage dismissals.\nB. Involuntary Guilty Plea\nBecause we are reversing and remanding on the basis of the defendant\u2019s ineffective assistance claim, we need not address his involuntary guilty plea argument.\nCONCLUSION\nFor the foregoing reasons, we reverse the judgment of the Will County circuit court dismissing the defendant\u2019s postconviction petition and remand the matter for further proceedings.\nReversed and remanded.\nMcDADE, EJ., and LYTTON, J., concur.", "type": "majority", "author": "JUSTICE HOLDRIDGE" } ], "attorneys": [ "Kenneth D. Brown, of State Appellate Defender\u2019s Office, of Ottawa, for appellant.", "Jeff Tomczak, State\u2019s Attorney, of Joliet (John X. Breslin and Gary F. Gnidovec, both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KEVIN KELLERMAN, Defendant-Appellant.\nThird District\nNo. 3\u201401\u20140713\nOpinion filed March 5, 2003.\nKenneth D. Brown, of State Appellate Defender\u2019s Office, of Ottawa, for appellant.\nJeff Tomczak, State\u2019s Attorney, of Joliet (John X. Breslin and Gary F. Gnidovec, both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "0781-01", "first_page_order": 799, "last_page_order": 806 }