People v. Gutierrez

• Court: Appellate Court of Illinois
• Decided: September 10, 2007
• Docket: 1-05-3633 Rel
• Status: Published

Opinion

FIRST DIVISION September 10, 2007

No. 1-05-3633

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) ) ARMANDO GUTIERREZ, ) Honorable ) Lon W. Shultz, Defendant-Appellant. ) Judge Presiding.

JUSTICE WOLFSON delivered the opinion of the court:

This case places us in a procedural quandary.

On July 17, 2002, following a jury trial, Armando Gutierrez

was convicted of first degree murder and attempt first degree

murder. On August 21, 2002, he was sentenced to 40 years in

prison for the murder and 20 years for the attempt, the sentences

to be served consecutively.

In this appeal, the defendant contends: (1) his first degree

murder conviction should be reduced to second degree murder; and

(2) the 60-year sentence imposed by the trial court is excessive.

When the defendant was sentenced his retained lawyer

withdrew from the case and the State Appellate Defender was

appointed to pursue the appeal. No timely notice of appeal was

filed. On June 23, 2005, the defendant filed a Post-Conviction

Petition, alleging his appointed counsel was ineffective because

of the failure to file a timely notice of appeal. On November 2, 1-05-3633

2005, the trial court, with the agreement of the State, granted

the petition and entered an order requiring the filing of the

late notice of the appeal. It was filed more than three years

after the defendant was sentenced.

We asked the parties to brief the issue of whether we have

jurisdiction to decide this appeal. They did so. We now hold we

are without jurisdiction.

We recognize the failure to file a timely notice of appeal

was not due to the defendant’s neglect. In addition, the record

shows defendant filed a late notice of appeal on April 1, 2003,

then later moved to dismiss his appeal. We dismissed it. People

v. Gutierrez, No. 1-03-3035 (2004) (dispositional order).

Defendant’s next attempt to file a late notice of appeal was

unsuccessful. People v. Gutierrez, No. 1-04-1797 (2004)

(dispositional order). The November 2, 2005, late notice of

appeal, ordered filed by the trial court, is the defendant’s

third attempt to obtain appellate review.

Supreme Court Rule 606(b) provides that a defendant seeking

to appeal a judgment or order entered by the trial court must

file a notice of appeal within 30 days after the entry of the

final judgment or order. Official Reports Advance Sheet No. 17

(August 16, 2006), R. 606(b), eff. September 1, 2006. Under some

circumstances the defendant may receive an extension of time to

file his notice of appeal. Rule 606(c) provides:

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"On motion supported by a showing of

reasonable excuse for failing to file a

notice of appeal on time filed in the

reviewing court within 30 days of the

expiration of the time for filing the notice

of appeal, or on motion supported by a

showing by affidavit that there is merit to

the appeal and that the failure to file a

notice of appeal on time was not due to

appellant’s culpable negligence, filed in the

reviewing court within six months of the

of appeal, in either case accompanied by the

proposed notice of appeal, the reviewing

court may grant leave to appeal and order the

clerk to transmit the notice of appeal to the

trial court for filing." Official Reports

Advance Sheet No. 17 (August 16, 2006), R.

606(c), eff. September 1, 2006.

We recognize there is a line of cases that holds Rule 606(b)

may be ignored when a timely notice of appeal is not filed by

appointed counsel. These cases hold the failure to file is

ineffective assistance of counsel, violating the Sixth Amendment

to the United States Constitution because it deprives a defendant

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of his right to appeal. See People v. Thomas, 292 Ill. App. 3d

891, 686 N.E.2d 1196 (1997); People v. Swanson, 276 Ill. App. 3d

130, 657 N.E.2d 1169 (1995); People v. Scott, 143 Ill. App. 3d

540, 493 N.E.2d 27 (1986); and People v. Perez, 115 Ill. App. 3d

446, 450 N.E.2d 870 (1983). Refusing to adhere to that line is

People v. Golden, 369 Ill. App. 3d 639, 860 N.E.2d 1119 (2006),

appeal allowed, 224 Ill. 2d 582, 871 N.E.2d 58 (2007).

No one can reasonably deny the notice of appeal ordered by

the trial court was outside the authority of Rule 606(b). The

question in this case is whether the trial and appellate courts

are free to bypass the rule when appointed counsel does not file

a timely notice of appeal. The supreme court supplied the answer

in People v. Lyles, 217 Ill. 2d 210, 216, 840 N.E.2d 1187 (2005):

"[T]he appellate and circuit courts of this

state must enforce and abide by the rules of

this court. The appellate court’s power

‘attaches only upon compliance with the rules

governing appeals.’ People v. Flowers, 208

Ill. 2d 291, 308, 280 Ill. Dec. 653, 802

N.E.2d 1174 (2003). ‘[N]either the trial

court nor the appellate court has the

"authority to excuse compliance with the

filing requirements of the supreme court

rules governing appeals." ’ Mitchell v.

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Fiat-Allis, Inc., 158 Ill. 2d 143, 150, 198

Ill. Dec. 399, 632 N.E.2d 1010 (1994),

quoting In re Smith, 80 Ill. App. 3d 380,

382, 35 Ill. Dec. 635, 399 N.E.2d 701

(1980)." (Emphasis in original.)

We take the answer to our question to be an emphatic no. We

must "enforce the rules as written." Lyles, 217 Ill. 2d at 220.

It is for the supreme court, in the exercise of its supervisory

power, a "broad and unusual power," Lyles, 217 Ill. 2d at 217,

to determine whether its appellate rules will apply in a

particular case.

For these reasons, we conclude the trial court had no

jurisdiction to order the filing of the late notice of appeal.

Nor do we have jurisdiction to decide the issues raised by the

defendant.

Appeal dismissed.

HOFFMAN, and HALL, JJ., concur.