Opinion
No. 1-16-2291
01-25-2019
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DARRIAN DANIELS, Defendant-Appellant.
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Cook County.
07 CR 15241
Honorable Neera Walsh, Judge Presiding.
JUSTICE CONNORS delivered the judgment of the court.
Justices Cunningham and Harris concurred in the judgment.
ORDER
¶ 1 Held: This court lacks jurisdiction to hear this appeal because the notice of appeal was filed before a pending postjudgment motion was ruled on, and was therefore premature; appeal dismissed.
¶ 2 Following a jury trial, defendant, Darrian Daniels, was convicted of two counts of first degree murder and sentenced to natural life in prison. This case is currently before this court on defendant's appeal from the trial court's dismissal of his postconviction petition. Defendant contends that his postconviction petition stated the gist of a constitutional claim where he argued
that he received ineffective assistance of both trial and appellate counsel. For the following reasons, we find that we do not have jurisdiction over this appeal.
¶ 3 Because the facts of this case have been set forth in great detail in People v. Daniels, 2015 IL App (1st) 131301-U, this court's decision on defendant's direct appeal of his convictions and sentence, they will not be set forth here. What follows is the case's relevant procedural history.
¶ 4 After this court affirmed defendant's convictions and sentence on February 17, 2015, defendant filed a timely pro se postconviction petition in the circuit court on March 30, 2016, alleging ineffective assistance of both trial and appellate counsel. On June 24, 2016, the circuit court entered a written order dismissing defendant's postconviction petition as frivolous and patently without merit.
¶ 5 On July 12, 2016, defendant mailed a "Motion for Re-Hearing on Post-Conviction Relief" to the circuit court. Thereafter, on July 25, 2016, defendant mailed a notice of appeal from the dismissal of his postconviction petition. On July 26, 2016, defendant's "Motion for Re-Hearing" was denied in open court.
¶ 6 The State contends that this sequence of events demonstrates that this court does not have jurisdiction over this appeal because a motion was still pending before the circuit court when defendant mailed his notice of appeal. As an initial matter, we note that defendant filed a motion to establish jurisdiction with this court on July 24, 2018, arguing that the notice of appeal filed on July 25, 2016, should remain effective pursuant to Illinois Supreme Court Rule 303 (eff. July 1, 2017). The State did not respond, and this court issued an order indicating that the motion would be taken with the case. We now address that motion as it relates to our jurisdiction.
¶ 7 The final judgment dismissing a postconviction petition must be reviewed in accordance with the rules of our supreme court. 725 ILCS 5/122-7 (West 2016). According to our supreme court's rules, an appeal from a final judgment is perfected only though the filing of a notice of appeal. Ill. S. Ct. R. 606(a) (eff. July 1, 2017). Although postconviction proceedings are civil proceedings (People v. Wilson, 37 Ill. 2d 617, 619-20 (1967)), Illinois Supreme Court Rule 651(d) (eff. July 1, 2017), states, "The procedure for an appeal in a post-conviction proceeding shall be in accordance with the rules governing criminal appeals."
¶ 8 Rule 606(b) states, "When a timely posttrial or postsentencing motion directed against the judgment has been filed by counsel, any notice of appeal filed before the entry of the order disposing of all pending postjudgment motions shall have no effect and shall be stricken by the trial court." Ill. S. Ct. R. 606(b) (eff. July 1, 2017). Consequently, the effect of defendant having filed his notice of appeal after he filed his motion for rehearing, but before the motion for rehearing had been ruled on, is that the notice of appeal was premature and should have been stricken. Because defendant did not file a new notice of appeal from the dismissal of his postconviction petition, this court lacks jurisdiction over this appeal.
¶ 9 Defendant maintains that because a different version of Rule 651(b) was in effect at the time defendant filed his notice of appeal, Rule 606(b) does not apply. In July of 2016, the rule stated, "The procedure for an appeal in a post-conviction proceeding shall be in accordance with the rules governing criminal appeals, as near as may be." (Emphasis added.) Ill. S. Ct. R. 651(d) (eff. Feb. 6, 2013). Defendant contends, without citing to any case law in support of such contention, that the rule "as near as may be" when defendant filed his notice of appeal was Illinois Supreme Court Rule 303(a) (eff. July 1, 2017), a civil appeals rule, which provides: "When a timely postjudgment motion has been filed by any party *** a notice of appeal filed
before the entry of the order disposing of the last pending postjudgment motion, or before the final disposition of any separate claim, becomes effective when the order disposing of said motion or claim is entered." Defendant contends that his premature notice of appeal should likewise be treated as filed on the date of the entry of the judgment denying his motion for rehearing. We disagree.
¶ 10 Rather, we find guidance in the case of People v. Walker, 395 Ill. App. 3d 860 (2009), a case that applied the same version of Rule 651(d) that was in effect at the time defendant filed his postconviction petition and subsequent pleadings. In Walker, the court stated that Illinois "Supreme Court Rule 606(b) [citation] governs the timing of appeals in the proceedings under the [Post-Conviction Hearing] Act." 395 Ill. App. 3d at 864. The court found that defendant's notice of appeal, which was filed before the trial court had entered an order disposing of all pending posjudgment motions, "was ineffective as to the dismissal of the petition under the [Post-Conviction Hearing] Act." Id. This court did not look to Rule 303, but rather relied on the same language in Rule 651(d) to find that the timing requirements in Rule 606(b) applied and that the notice of appeal was, therefore, premature as to the dismissal of the defendant's postconviction petition. Id.; see also People v. Dominguez, 366 Ill. App. 3d 468, 472-73 (2006) (the defendant's filing of notice of appeal at same time as motion to reconsider rendered notice of appeal premature, as motion to reconsider had not yet been ruled on). We likewise rely on the same and dismiss this appeal for lack of jurisdiction.
¶ 11 Appeal dismissed for lack of jurisdiction.