{ "id": 3777988, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DAVID KELLER, Defendant-Appellant", "name_abbreviation": "People v. Keller", "decision_date": "2003-11-20", "docket_number": "No. 5-02-0371", "first_page": "824", "last_page": "832", "citations": [ { "type": "official", "cite": "344 Ill. App. 3d 824" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "549 N.E.2d 1257", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1990, "pin_cites": [ { "page": "1260-61" } ], "opinion_index": 0 }, { "cite": "133 Ill. 2d 331", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3260148 ], "year": 1990, "pin_cites": [ { "page": "338-39" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/133/0331-01" ] }, { "cite": "395 U.S. 327", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1771772 ], "weight": 9, "year": 1969, "pin_cites": [ { "page": "330" }, { "page": "344" }, { "page": "1717" } ], "opinion_index": 0, "case_paths": [ "/us/395/0327-01" ] }, { "cite": "526 U.S. 23", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11132788 ], "weight": 3, "year": 1999, "pin_cites": [ { "page": "28" }, { "page": "24" }, { "page": "965" } ], "opinion_index": 0, "case_paths": [ "/us/526/0023-01" ] }, { "cite": "767 N.E.2d 958", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2002, "opinion_index": 0 }, { "cite": "329 Ill. App. 3d 322", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1472425 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/ill-app-3d/329/0322-01" ] }, { "cite": "757 N.E.2d 442", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2001, "opinion_index": 0 }, { "cite": "197 Ill. 2d 239", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 259103 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/ill-2d/197/0239-01" ] }, { "cite": "528 U.S. 470", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9476451 ], "weight": 6, "year": 2000, "pin_cites": [ { "page": "477" }, { "page": "995" }, { "page": "1035" } ], "opinion_index": 0, "case_paths": [ "/us/528/0470-01" ] }, { "cite": "718 N.E.2d 623", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1999, "pin_cites": [ { "page": "627", "parenthetical": "\"an attorney may end the attorney-client relationship with or without cause so long as the client is not left in a position where he is prejudiced\"" } ], "opinion_index": 0 }, { "cite": "307 Ill. App. 3d 907", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 173556 ], "year": 1999, "pin_cites": [ { "page": "912", "parenthetical": "\"an attorney may end the attorney-client relationship with or without cause so long as the client is not left in a position where he is prejudiced\"" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/307/0907-01" ] }, { "cite": "793 N.E.2d 609", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2002, "pin_cites": [ { "page": "619" } ], "opinion_index": 0 }, { "cite": "794 N.E.2d 294", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 2002, "pin_cites": [ { "page": "300" }, { "page": "301" } ], "opinion_index": 0 }, { "cite": "206 Ill. 2d 348", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 1578261 ], "weight": 2, "year": 2002, "pin_cites": [ { "page": "356" }, { "page": "357" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/206/0348-01" ] }, { "cite": "701 N.E.2d 1063", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1998, "pin_cites": [ { "page": "1070-71" } ], "opinion_index": 0 }, { "cite": "183 Ill. 2d 366", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 209962 ], "year": 1998, "pin_cites": [ { "page": "378-79" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/183/0366-01" ] } ], "analysis": { "cardinality": 769, "char_count": 18713, "ocr_confidence": 0.775, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.111599942699362 }, "sha256": "39734182d3d49402a6dbf7132efc44b56a62e66520367370c3cae28a44085b22", "simhash": "1:a2901c6d3c7a9d11", "word_count": 3161 }, "last_updated": "2023-07-14T15:11:26.904766+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. DAVID KELLER, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE MAAG\ndelivered the opinion of the court:\nThe defendant, David Keller, appeals the dismissal of his postcon-viction petition. The defendant filed a motion for reconsideration, and the circuit court denied the motion. The defendant filed a timely notice of appeal. We reverse and remand.\nThe relevant facts are as follows. A jury found the defendant guilty of first-degree murder and attempt (armed robbery) on September 24, 1993. On October 21, 1993, the circuit court extended the time for filing posttrial motions until a transcript of the trial had been prepared. The defendant was sentenced to 35 years\u2019 imprisonment for first-degree murder and 10 years\u2019 imprisonment for attempt (armed robbery). At'the conclusion of the hearing, the circuit court informed the defendant of his right to appeal.\nOn March 24, 1994, the defendant filed a motion for the modification of his sentence. On June 9, 1994, the defendant filed a motion for a new trial. On June 17, 1994, the circuit court denied the defendant\u2019s motion for a new trial. On April 11, 1996, the circuit court modified the defendant\u2019s sentence for first-degree murder to 30 years\u2019 imprisonment. Throughout all of the foregoing proceedings, the defendant was represented by attorney Thomas Hildebrand. The defendant did not file a direct appeal to this court.\nOn July 23, 1999, the defendant filed a pro se petition for postcon-viction relief. In the petition, the defendant alleged that at the sentencing hearing, he had told Hildebrand that he wanted to appeal. Hildebrand allegedly assured the defendant and his mother that Hildebrand would perfect the appeal. Many months later, the defendant asked his mother to contact Hildebrand because he had not heard from him. Hildebrand allegedly told the defendant\u2019s mother that he was working on the appeal and that the appeal would take three to four years. In the early part of 1999, the defendant\u2019s mother learned from the clerk of the court that Hildebrand had never filed a notice of appeal.\nThe circuit court appointed attorney John Delaney to represent the defendant in the postconviction proceedings. Delaney then filed an amended petition for postconviction relief. He reiterated the defendant\u2019s claim about Hildebrand not appealing his case. The State did not respond to the petition or move to dismiss it. The court held a hearing on the petition. The colloquy between the court and Delaney was as follows:\n\u201cTHE COURT: *** [M]y understanding is *** that contingent upon the Court re[ ]establishing Mr. Keller\u2019s appellate rights in this case, you are going to withdraw the post[ ]conviction petition and amend the post[ ]conviction petition. Is that correct?\nMR. DELANEY: Correct, Your Honor.\nHi * *\nTHE COURT: *** [I]n reviewing all of the court files and transcripts, *** we probably don\u2019t have to reach the issues in your post[ ]conviction petition because they will be cured by what I am going to do here in a second; and that is, upon review of the transcripts, it looks like while you were advised of your rights at one time, you were not advised of your rights at the completion of the proceedings. So, I am going to do that today and start your thirty days for filing of the Notice of Appeal.\u201d\nThe court then ordered the clerk to file a notice of appeal for the defendant, and the clerk did so. The defendant then withdrew his postconviction petition.\nThis court then dismissed the defendant\u2019s appeal because it was not timely filed. People v. Keller, No. 5 \u2014 99\u20140818 (2001) (unpublished order under Supreme Court Rule 23 (166 Ill. 2d R. 23)). This court also stated that the circuit court cannot extend the time to file a notice of appeal pursuant to the Illinois Supreme Court rules. Additionally, this court rejected the defendant\u2019s argument that the appeal was from the granting of his postconviction petition, because the defendant had withdrawn the postconviction petition.\nOn July 10, 2001, the defendant, by attorney Curtis Blood, filed a motion for leave to file an amended postconviction petition, and an amended postconviction petition. Within the petition, the defendant alleged that Hildebrand had disregarded his directive to appeal the convictions and sentences. The defendant also alleged that the circuit court had failed to advise him of his right to appeal after he was resentenced. The State did not file an answer or a motion to dismiss the petition, and the cause proceeded to an evidentiary hearing.\nAt the hearing, the court stated that on July 12, 2001, it had granted the defendant\u2019s motion for leave to file an amended postcon-viction petition. The defendant testified that he had told Hildebrand that he wanted to appeal the convictions and sentences. The defendant also talked about the direct appeal that this court denied: \u201cThe Court had granted me an appeal. *** My attorney *** advised me that *** once the judge grants you your right [to appeal] [,] then what you have to do is withdraw the post[ ]conviction petition and be granted your right to appeal.\u201d\nThe defendant\u2019s mother, Deborah Keller, testified that she had hired Hildebrand to represent the defendant at the trial. Thereafter, she paid Hildebrand approximately $1,300 for transcripts to get the appeal started. Hildebrand told her that \u201cit would take a while to get the appeal going\u201d and that the appeal would take from three to five years.\nHildebrand testified that he had been retained to represent the defendant at the trial. He did not recall anyone asking him to represent the defendant on appeal. The following colloquy then occurred:\n\u201cQ. [Susan Jensen \u2014 Assistant State\u2019s Attorney:] Okay. After the conviction and the sentencing, did you have any discussion with either Mr. Keller or his mother about appeals?\nA. [Thomas Hildebrand:] No. To my knowledge and belief, I did not. Again, I need to see the transcripts. I would think that probably I would have done[ \u2014 ]my custom and practice would have been, as any time, would have been to have the judge instruct the clerk to file a notice of appeal.\nQ. So that if that was not done, if the record did not reflect any notice of appeal being filed, would that mean you did not discuss appeals with the defendant?\nA. I wouldn\u2019t have filed a notice of appeal on behalf of the defendant unless I was the attorney for the defendant for an appeal.\nQ. Do you recall the defendant ever asking you or telling you that he wanted to appeal his conviction?\nA. He may have. But, again, I would not have undertaken to do anything on his behalf unless and until I was retained as his attorney for an appeal. That is a whole separate procedure than trying the case. It is a whole different ballgame.\nQ. Do you recall having any discussions with *** Deborah Keller about obtaining transcripts?\nA. I would \u2014 again, I don\u2019t have my notes in front of me. If I had any discussion regarding retaining transcripts, it would have been for the purpose of handling any post[ ]trial motions. It wouldn\u2019t have been for handling an appeal unless and until I had entered my appearance and filed a motion[ \u2014 ]a notice of appeal on his behalf. I saw the affidavit in there, something about me telling them an appeal would take three or four years. I never made that statement to anybody in my life. Appeals don\u2019t take three or four years, especially criminal appeals.\u201d\nLater, the defendant\u2019s attorney questioned Hildebrand about the same issue:\n\u201cQ. [Curtis Blood:] Did I understand you to say that *** David Keller may have asked you to file an appeal ***?\nA. *** I don\u2019t have my file in front of me. *** To my knowledge and belief, I am sure Mr. Keller *** wanted to appeal his sentence. I don\u2019t recall off[ ]hand what we did. I am just telling you that I am sure we discussed he probably wanted to appeal a conviction. *** But, as to whether or not I agreed that I would represent him on appeal, I did not undertake to represent him on an appeal.\n* * *\nQ. You are sure you did not agree to do an appeal for Mr. Keller?\nA. I do very few criminal appeals. Had I been retained to do a criminal appeal, there would have been some money up front and there would have been a notice of appeal filed. Again, I don\u2019t have the file in front of me to look at it and see what was done or what wasn\u2019t done with Mr. Keller\u2019s case.\nsk\nQ. Did you file a notice of appeal in the case, Tom?\nA. No. That is what I told you the last three times you asked me.\nQ. Okay. Do you recall Mr. Keller being interested in appealing, wanting to appeal, but you were not retained? Am I saying that right?\nA. That would be correct. I wasn\u2019t his Counsel for an appeal.\u201d The circuit court took the matter under advisement, and with regard to the withdrawal of the defendant\u2019s postconviction petition, the court noted, \u201cI don\u2019t know if that is contingent upon anything or what the expectation [sic].\u201d\nOn March 6, 2002, the circuit court entered an order dismissing the postconviction petition. The court stated, in relevant part, as follows:\n\u201cThe defendant was granted leave to file an Amended Post[-] Conviction Petition on July 10, 2001 [sic]. The granting of leave to file such an Amended Petition does not necessarily of itself indicate that the Court has jurisdiction or *** is granting jurisdiction concerning the petition. *** The Petition filed and presented was an amendment to a then non[ ]existing Petition. Accordingly, it is dismissed. Additionally, even if the Court should liberally construe the pleading as a newly filed Post-Conviction Petition, the time of the filing is far outside the statutory time limits as dictated by the dates of the conviction and disposition several years before.\u201d (Emphasis in original.)\nOn April 4, 2002, the defendant filed a postjudgment motion for reconsideration in which he attempted to address the circuit court\u2019s concerns about the dismissal of the postconviction petition in 1999 and the timeliness of the filing of the amended postconviction petition. The circuit court denied the motion. The defendant filed a notice of appeal.\nOn appeal, the defendant claims that he was denied the effective assistance of counsel when his attorney did not act on the defendant\u2019s directive to appeal the defendant\u2019s convictions and sentences. For this reason, the defendant asks this court to remand the cause to the circuit court with directions to provide the defendant a direct appeal.\nThe Illinois Post-Conviction Hearing Act (Act) (725 ILCS 5/122 \u2014 1 et seq. (West 2000)) provides a mechanism by which those under a criminal sentence in this state can assert that their convictions were the result of a substantial denial of their rights under the United States Constitution or the Illinois Constitution or both. People v. Coleman, 183 Ill. 2d 366, 378-79, 701 N.E.2d 1063, 1070-71 (1998). A petition for postconviction relief is not an appeal of the underlying judgment; rather, it is a collateral proceeding. As such, a postconviction proceeding allows an inquiry only into constitutional issues that were not, and could not have been, adjudicated on direct appeal. Thus, issues that were raised and decided on direct appeal are barred from consideration by the doctrine of res judicata-, issues that could have been raised, but were not, are considered waived. People v. Johnson, 206 Ill. 2d 348, 356, 794 N.E.2d 294, 300 (2002). The standard of review has been reduced to a simple formula: a de novo review for the dismissal of a postconviction petition without an evidentiary hearing and a review for manifest error when a petitioner\u2019s constitutional claims have been denied following an evidentiary hearing. Johnson, 206 Ill. 2d at 357, 794 N.E.2d at 301; see People v. Pitsonbarger, 205 IH. 2d 444, 456, 793 N.E.2d 609, 619 (2002).\nAs we previously stated, this case is on appeal from the denial of the defendant\u2019s amended postconviction petition. The postconviction petition alleged as follows: \u201c(1) Mr. Keller received ineffective assistance of counsel when his trial attorney failed to request pre[ ]trial dismissal under the state speedy-trial statute [citation]; (2) Mr. KeUer received ineffective assistance of counsel when his trial attorney failed to appeal the judgment against him; and (3) the circuit court failed to advise Mr. Keller of his rights to appeal after resentencing him.\u201d The circuit court disposed of the defendant\u2019s petition after an evidentiary hearing, stating that it had been presented as an amendment to \u201ca then noni ^existing Petition\u201d (emphasis in original) because the original postconviction petition had been withdrawn. The circuit court then dismissed the amended postconviction petition. We disagree with this ruling by the circuit court.\nThe amended postconviction petition should have been treated as if it were a new postconviction petition. The circuit court explained why it would not treat the petition as if it were a new postconviction petition: \u201c[T]he time of the filing is far outside the statutory time limits as dictated by the dates of the conviction and disposition several years before.\u201d While it is true that the Act sets forth certain time constraints for the filing of a postconviction petition, the Act also states that the petition can be filed at any time if the \u201cpetitioner alleges facts showing that the delay was not due to his or her culpable negligence.\u201d 725 ILCS 5/122 \u2014 1(c) (West 2000). The defendant in the instant case has alleged such facts.\nThe record shows that the circuit court failed to properly advise the defendant of his direct appeal rights. See Official Reports Advance Sheet No. 21 (October 17, 2001), R. 605(a), eff. October 1, 2001. Additionally, the defendant requested an appeal, and Hildebrand admitted that he knew that the defendant wanted to file a notice of appeal. Hildebrand failed to file the notice of appeal and did not withdraw as the defendant\u2019s attorney of record. See 134 Ill. 2d Rs. 13 (an attorney may not withdraw without leave of court), 1.16 (a lawyer shall not withdraw from employment until the lawyer has taken reasonable steps to avoid foreseeable prejudice to the rights of the client, including giving due notice to the client and allowing time for the employment of other counsel); In re Rose Lee Ann L., 307 Ill. App. 3d 907, 912, 718 N.E.2d 623, 627 (1999) (\u201can attorney may end the attorney-client relationship with or without cause so long as the client is not left in a position where he is prejudiced\u201d).\nThe State claims that in order for the defendant to succeed, he must show merit to the direct appeal that he was denied, and it cites Roe v. Flores-Ortega, 528 U.S. 470, 145 L. Ed. 2d 985, 120 S. Ct. 1029 (2000), People v. Edwards, 197 Ill. 2d 239, 757 N.E.2d 442 (2001), and People v. Hughes, 329 Ill. App. 3d 322, 767 N.E.2d 958 (2002), to support this position. We disagree.\nIn Peguero v. United States, 526 U.S. 23, 28, 143 L. Ed. 2d 18, 24, 119 S. Ct. 961, 965 (1999), the United States Supreme Court, describing the holding in Rodriquez v. United States, 395 U.S. 327, 23 L. Ed. 2d 340, 89 S. Ct. 1715 (1969), stated the rule as follows: \u201c[W]hen counsel fails to file a requested appeal, a defendant is entitled to *** an appeal without showing that his appeal would likely have had merit.\u201d This is so because a defendant who instructs counsel to initiate an appeal reasonably relies upon counsel to file the necessary notice. Counsel\u2019s failure to do so cannot be considered a strategic decision; filing a notice of appeal is a purely ministerial task, and the failure to file reflects inattention to the defendant\u2019s wishes. Flores-Ortega, 528 U.S. at 477, 145 L. Ed. 2d at 995, 120 S. Ct. at 1035. Additionally, the foregoing cases cited by the State are distinguishable from the instant case because the defendants in those cases pleaded guilty. The defendant in the case at bar argues that his case is similar to People v. Moore, 133 Ill. 2d 331, 338-39, 549 N.E.2d 1257, 1260-61 (1990), because, like the Moore case, the defendant here was convicted at a trial and his attorney did not secure for him a direct appeal. While we agree that this case is more akin to Moore than the foregoing cases cited by the State, the Moore decision is also distinguishable because a notice of appeal was filed in that case. Although the appeal in Moore was initially dismissed for lack of prosecution, the Illinois Supreme Court reinstated the appeal because the dismissal of the appeal had been solely due to the defendant\u2019s counsel\u2019s failure to comply with the appellate rules. In the instant case, no notice of appeal was filed, so the appeal could not be reinstated as in the Moore decision.\nThe instant case is controlled by the United States Supreme Court\u2019s decision in Rodriquez v. United States, 395 U.S. 327, 23 L. Ed. 2d 340, 89 S. Ct. 1715 (1969). In Rodriquez, the defendant was convicted at a trial, and his attorney did not secure for him a direct appeal to which he was entitled. The Rodriquez Court, referring to the fact that the petition failed to specify the points that the petitioner would raise if he were given a right to appeal, stated, \u201c[tjhose whose right to appeal has been frustrated should be treated exactly like any other appellants; they should not be given an additional hurdle to clear just because their rights were violated at some earlier stage in the proceedings.\u201d 395 U.S. at 330, 23 L. Ed. 2d at 344, 89 S. Ct. at 1717. The Rodriquez Court also noted that the trial judge had failed to advise the defendant of his right to appeal. The Rodriquez Court reversed and remanded the case to the district court for the petitioner to be resentenced, even though he had been sentenced six years earlier, so that he could perfect an appeal in the manner prescribed by the applicable rules.\nLikewise, in the instant case, the only effective relief that this court can give the defendant is to restore his right to a direct appeal. For this reason, we reverse the circuit court\u2019s dismissal of the defendant\u2019s postconviction petition, and we remand this case to the circuit court to resentence the defendant. The defendant must then file a notice of appeal in accordance with Supreme Court Rule 606(b) (188 Ill. 2d R. 606(b)) to be entitled to a direct appeal of his convictions and sentences.\nReversed; cause remanded with directions.\nCHAPMAN and WELCH, JJ., concur.", "type": "majority", "author": "JUSTICE MAAG" } ], "attorneys": [ "Daniel M. Kirwan, of State Appellate Defender\u2019s Office, of Mt. Vernon, for appellant.", "Bill Mudge, State\u2019s Attorney, of Edwardsville (Norbert J. Goetten, Stephen E. Norris, and Sharon Shanahan, all 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. DAVID KELLER, Defendant-Appellant.\nFifth District\nNo. 5-02-0371\nOpinion filed November 20, 2003.\nDaniel M. Kirwan, of State Appellate Defender\u2019s Office, of Mt. Vernon, for appellant.\nBill Mudge, State\u2019s Attorney, of Edwardsville (Norbert J. Goetten, Stephen E. Norris, and Sharon Shanahan, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "0824-01", "first_page_order": 842, "last_page_order": 850 }