Opinion
No. 1-15-2722
03-31-2017
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. FAREED JACKSON, 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.
No. 11 CR 13729
Honorable William G. Lacy, Judge presiding.
JUSTICE SIMON delivered the judgment of the court.
Justices Harris and Mikva concurred in the judgment.
ORDER
¶ 1 Held: Appeal dismissed where defendant untimely filed his petition for leave to file a late notice of appeal more than one year after the dismissal of his postconviction petition.
¶ 2 Defendant Fareed Jackson sought leave to file a late notice of appeal from the July 25, 2014, summary dismissal of his petition for relief under the Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2014)) on September 10, 2015. Although we initially granted
defendant leave, we find that we lacked jurisdiction to grant his request. Accordingly, we vacate our October 9, 2015, order granting defendant leave and dismiss this appeal.
¶ 3 Following a 2012 jury trial, defendant was found guilty of armed habitual criminal and unlawful use or possession of a weapon by a felon. The trial court merged the counts and sentenced defendant to 10 years' imprisonment for the Class X felony of armed habitual criminal. On appeal, we directed the clerk of the circuit court to correct defendant's mittimus and the fines and fees order. People v. Jackson, No. 1-12-3289 (2013) (dispositional order). Defendant subsequently filed a pro se postconviction petition alleging various deprivations of his constitutional rights. The circuit court summarily dismissed the petition on July 25, 2014, and defendant mailed his notice of appeal on August 27, 2014.
¶ 4 On September 12, 2014, the circuit court found that defendant's notice of appeal was untimely and thus did not transmit his appeal to this court. The circuit court's order explained that defendant could "seek a late notice of appeal in the appellate court" and directed the clerk of the circuit court to send notice to defendant and the Office of the State Appellate Defender. At some point, defendant sent a document, which was notarized on June 10, 2015, to the circuit court of Cook County requesting a "status report" regarding his "Notice of Appeal filed on August 27, 2014."
¶ 5 On September 10, 2015, defendant mailed a "petition for leave to file late notice of appeal" to this court. The petition alleged that defendant filed his notice of appeal late "[o]n the advice of the law clerk at Shawnee CC" and that he was "assured" that the two-day delay would not affect his notice of appeal because the rules would be relaxed due to his incarceration. "Had he known the proper procedure at that time, he would have simply petitioned this court at that time for Leave to File a Late Notice of Appeal." Defendant had been waiting "[a]ll this time" for
the circuit court to rule on his appeal and he did not discover his appeal was not accepted until after he sent the request for status. On October 9, 2015, we granted defendant leave to file a late notice of appeal.
¶ 6 On appeal, defendant maintains that he stated the gist of a claim of ineffective assistance of counsel because his trial attorney failed to enter the pants he was wearing at the time of the offense into evidence to contradict testimony that he was carrying a gun.
¶ 7 Although not raised by the parties, we have an independent duty to consider whether we have jurisdiction to review this case. People v. Smith, 228 Ill. 2d 95, 104 (2008). The filing of a notice of appeal "is the jurisdictional step which initiates appellate review." Id. Absent a timely filed notice of appeal, this court lacks jurisdiction to consider issues relating to any part of the ruling (People v. Love, 2013 IL App (2d) 120600, ¶ 32), and we must dismiss the appeal (Smith, 228 Ill. 2d at 104).
¶ 8 Article VI of the Illinois Supreme Court rules governs "Appeals in Criminal Cases, Post-Conviction Cases, and Juvenile Court Proceedings." Within Article VI, Illinois Supreme Court Rule 606 (eff. Dec. 11, 2014) sets forth the requirements for perfection of an appeal. Under Rule 606(b), defendant's notice of appeal from the dismissal of his postconviction petition had to be "filed with the clerk of the circuit court within 30 days after the entry of the final judgment appealed from." Where, as here, a notice of appeal in a postconviction proceeding is received after the 30-day period, "the time of mailing *** shall be deemed the time of filing." Ill. S. Ct. R. 373 (eff. Nov. 1, 2016); see also People v. Lugo, 391 Ill. App. 3d 995, 997 (2009). In this case, defendant mailed his notice of appeal from the July 25, 2014, dismissal of his postconviction petition to the circuit court on August 27, 2014, two days after the expiration of the 30-day deadline.
¶ 9 Rule 606(c) provides for an "extension of time in certain circumstances" and permits a defendant to petition the reviewing court for leave to file a late notice of appeal. Under Rule 606(c), the reviewing court may grant leave on a motion filed within 30 days after the expiration of the time for filing a notice of appeal, if the motion is supported by a showing of reasonable excuse for failing to timely file a notice of appeal. Additionally, Rule 606(c) provides that a defendant may seek leave up to six months after the expiration of the time for filing a notice of appeal "on motion supported by a showing by affidavit" that the appeal has merit and the delay was not due to the defendant's culpable negligence. In both cases, the petition must be accompanied by a proposed late notice of appeal. Ill. S. Ct. R. 606(c) (eff. Dec. 11, 2014).
¶ 10 Here, defendant sent his "notice of appeal" to the circuit court after the expiration of the 30-day period unaccompanied by a motion or any explanation for his failure to timely file the notice. Defendant did not seek leave to file a late notice of appeal until September 10, 2015, more than one year after the dismissal of his petition. Accordingly, defendant failed to satisfy the requirements of Rule 606 and we lacked jurisdiction to grant defendant's petition for leave to file his late notice of appeal. See Secura Ins. Co. v. Illinois Farmers Ins. Co., 232 Ill. 2d 209, 217-18 (2009) (although appellate courts lack the authority to excuse the Rule 606 requirements, defendant is not without recourse because the Illinois Supreme Court has supervisory authority to oversee administration of its own rules).
¶ 11 For the reasons stated, we vacate our October 9, 2015, order and dismiss this appeal.
¶ 12 Order vacated; appeal dismissed.