People v. Boatman

2021 IL App (4th) 210140-U

• Court: Appellate Court of Illinois
• Decided: November 15, 2021
• Docket: 4-21-0140
• Status: Unpublished

Opinion

NOTICE FILED This Order was filed under 2021 IL App (4th) 210140-U November 15, 2021 Supreme Court Rule 23 and Carla Bender is not precedent except in the NO. 4-21-0140 4th District Appellate limited circumstances Court, IL allowed under Rule 23(e)(1). IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Champaign County GREGORY L. BOATMAN, ) No. 97CF1076 Defendant-Appellant. ) ) Honorable ) Randall B. Rosenbaum, ) Judge Presiding.

JUSTICE HARRIS delivered the judgment of the court. Presiding Justice Knecht and Justice Holder White concurred in the judgment.

ORDER ¶1 Held: The appellate court granted appointed counsel’s motion to withdraw and dismissed the appeal for lack of jurisdiction.

¶2 Defendant, Gregory L. Boatman, appeals the dismissal of his petition for relief

from judgment pursuant to section 2-1401 of the Code of Civil Procedure (Code) (735 ILCS

5/2-1401 (West 2018)). The Office of the State Appellate Defender (OSAD) was appointed to

represent defendant. OSAD now moves to withdraw pursuant to Illinois law on the basis that this

court lacks jurisdiction. Alternatively, OSAD seeks to withdraw on the basis that it cannot raise

any potentially meritorious argument on appeal. We grant OSAD’s motion to withdraw and

dismiss the appeal for lack of jurisdiction.

¶3 I. BACKGROUND ¶4 Following a jury trial, defendant was convicted of two counts of aggravated

criminal sexual assault (720 ILCS 5/12-14(a)(1) (West 1996)), attempted first degree murder of a

peace officer (id. §§ 8-4(a), 9-1(a)(1)), and unlawful possession of a stolen vehicle (625 ILCS

5/4-103(a)(1) (West 1996)). The trial court imposed concurrent sentences of 14 years’

imprisonment for unlawful possession of a stolen vehicle and 160 years’ imprisonment for

attempted first degree murder of a peace officer. The court also imposed sentences of 60 years’

imprisonment on each of the aggravated sexual assault convictions. One of these 60-year

sentences was to run concurrently with the sentences for the other offenses, and the second was

to run consecutively.

¶5 On direct appeal, this court reduced defendant’s sentence for attempted first

degree murder of a peace officer to 60 years’ imprisonment but otherwise affirmed the judgment

of the trial court. People v. Boatman, 312 Ill. App. 3d 340, 345 (2000).

¶6 Defendant filed multiple collateral proceedings, including two postconviction

petitions, two petitions for relief from judgment pursuant to section 2-1401 of the Code, and

several motions for forensic testing.

¶7 On June 4, 2018, defendant, pro se, filed his third petition for relief from

judgment pursuant to section 2-1401 of the Code, which is the subject of the instant appeal. In

the petition, defendant requested that the trial court vacate his convictions due to newly

discovered evidence that had allegedly been fraudulently concealed from him. Specifically,

defendant alleged the defense had been precluded from eliciting evidence at trial of the victim’s

sexual activity with individuals other than defendant. Defendant stated the victim had been jailed

based on prostitution charges at the time she testified during his trial. Defendant also alleged one

of the jurors knew the father of one of the State’s witnesses. Defendant further alleged an officer

-2- tampered with the victim’s rape kit. Defendant attached to his petition a police report from 2009

and a motion in limine filed by the State in 1997. Defendant also attached an unsigned

handwritten note that stated: “I do not know the witness, but I do know his father.”

¶8 On July 30, 2018, the trial court entered an order dismissing the section 2-1401

petition. On February 12, 2021, the circuit clerk sent defendant a copy of the order. On March 1,

2021, defendant, pro se, filed a late notice of appeal in the circuit court.

¶9 The trial court sent a letter to defendant on March 3, 2021. The letter noted the

court had no record of notifying defendant of the dismissal of his section 2-1401 petition until

February 2021. The letter stated the court was granting defendant’s request to file a late notice of

appeal. OSAD was appointed to represent defendant on appeal.

¶ 10 II. ANALYSIS

¶ 11 OSAD now moves for leave to withdraw as counsel. OSAD contends the

appellate court lacks jurisdiction because defendant’s notice of appeal in the trial court was not

timely filed. OSAD asserts that the six-month grace period for filing a notice of appeal under

Illinois Supreme Court Rule 606(c) (eff. June 22, 2017) had passed before it was appointed as

counsel. OSAD notes defendant’s only option is to seek a motion for a supervisory order from

the Illinois Supreme Court to grant jurisdiction to this court. OSAD has not sought such a motion

on defendant’s behalf, as it has concluded an appeal in this case would be without arguable

merit. OSAD alternatively requests, in the event we do not dismiss the appeal for lack of

jurisdiction, that we allow OSAD to withdraw on the basis that an appeal in this cause would be

without arguable merit.

-3- ¶ 12 We first consider our jurisdiction over this appeal. “It is a well-established

proposition that jurisdiction only arises in the appellate court when a party timely files a notice of

appeal.” Steinbrecher v. Steinbrecher, 197 Ill. 2d 514, 521 (2001).

¶ 13 Initially, we disagree with OSAD’s assertion that Illinois Supreme Court Rule 606

(eff. June 22, 2017), which governs the procedure for filing notices of appeal in criminal cases,

applies to the instant case. Defendant’s petition for relief from judgment was filed under section

2-1401 of the Code (735 ILCS 5/2-1401 (West 2018)). Section 2-1401 is “a civil remedy that

extends to criminal cases as well as to civil cases.” People v. Vincent, 226 Ill. 2d 1, 8 (2007).

“[P]roceedings under section 2-1401 are subject to the usual rules of civil practice.” Id.

Accordingly, Illinois Supreme Court Rule 303 (eff. July 1, 2017), which concerns the procedure

for filing notices of appeal in civil appeals, applies to this case. See People v. Walker, 395 Ill.

App. 3d 860, 863-64 (2009).

¶ 14 Pursuant to Rule 303(a), the notice of appeal must be filed within 30 days after

the entry of the final judgment appealed from or the entry of an order disposing of a timely-filed

postjudgment motion. Ill. S. Ct. R. 303(a) (eff. July 1, 2017). Under certain circumstances, the

appellate court may grant leave to file a late notice of appeal if the appellant files a motion within

30 days after expiration of the time for filing a notice of appeal in the trial court. Ill. S. Ct. R.

303(d) (eff. July 1, 2017).

¶ 15 We lack jurisdiction over the instant appeal because defendant failed to file a

timely notice of appeal. Defendant’s notice of appeal was filed more than two years after the

entry of the final judgment dismissing the section 2-1401 petition, which was well beyond the

30-day period set forth in Rule 303(a). Although the trial court purportedly allowed defendant to

file a late notice of appeal in March 2021, it lacked the authority to do so. See Rehabilitation

-4- Consultants for Industry, Inc. v. Nowak, 259 Ill. App. 3d 725, 728 (1994) (“[A] court generally

retains jurisdiction over cases for only a 30-day period after entry of a final order.”). The period

for filing a motion for a late notice of appeal under Rule 303(d) expired before OSAD was

appointed. OSAD has not sought a supervisory order from the supreme court conferring

jurisdiction on this court. Accordingly, this court lacks jurisdiction, and we must dismiss the

appeal. See MidFirst Bank v. McNeal, 2016 IL App (1st) 150465, ¶ 12.

¶ 16 III. CONCLUSION

¶ 17 For the reasons stated, we allow OSAD to withdraw and dismiss the appeal for

lack of jurisdiction.

¶ 18 Appeal dismissed.

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