NO. 4-94-0883
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) McLean County
ANTONIO HERNANDEZ, ) No. 93CF223
Defendant-Appellant. )
) Honorable
) Ronald C. Dozier,
) Judge Presiding.
_________________________________________________________________
PRESIDING JUSTICE COOK delivered the opinion of the
court:
Defendant Antonio Hernandez filed a pro se petition for
post-conviction relief, alleging, inter alia, that he received
ineffective assistance of counsel because his counsel failed to
perfect an appeal. The trial court dismissed defendant's peti-
tion as "patently without merit," pursuant to section 122-
2.1(a)(2) of the Post-Conviction Hearing Act (Act) (725 ILCS
5/122-2.1(a)(2) (West 1992)). Defendant appeals, contending that
the trial court erred in summarily dismissing his petition. We
reverse and remand for appointment of counsel who will amend the
post-conviction petition.
In March 1994, following a bench trial, defendant was
found guilty of cannabis trafficking (720 ILCS 550/5.1 (West
1992)) and two lesser possession offenses that merged with the
trafficking charge. Defendant was sentenced to seven years'
imprisonment. No direct appeal was taken from defendant's
conviction and sentence.
Prior to trial, retained defense counsel had filed
motions to suppress statements made by defendant and evidence
seized from defendant's car. The trial court struck the motions
as untimely but stated it would consider the suppression issues
they raised when ruling on the admissibility of evidence at
trial.
At trial, the State presented evidence that Officer
Jeffrey Wilson was on routine patrol when he decided to investi-
gate a car parked in the lot of a Super 8 Motel in McLean,
Illinois. The car caught Wilson's attention because it was
painted in two different tones of gold and had Texas license
plates. A license check revealed the car was registered to Juan
Hernandez of El Paso, Texas, and that the car had crossed the
United States-Mexico border the day before. Wilson requested a
K-9 unit, and the dog alerted to the presence of drugs in the
car. Wilson then sought consent to search the car. Three
officers knocked on the door of a motel room registered under the
name Hernandez, and after a delay, defendant answered. Although
defendant is a Mexican national with limited English abilities,
he was able to communicate his consent to a search of his room
and car. The search of defendant's car revealed a possible
secret compartment. The police asked permission to poke holes in
the car, and defendant again consented. After two holes were
poked in the trunk area, more than 50 pounds of cannabis were
discovered in a secret compartment. Defendant was arrested and
taken to a Bloomington police station. There, with the aid of an
interpreter, defendant was advised of his Miranda rights and
interviewed. Defendant stated that he was hired in Durango,
Mexico, by a man named Melon to drive a vehicle containing drugs
to Chicago.
Defendant, through an interpreter, testified that the
police officers entered his motel room with guns drawn. Defen-
dant did not consent to the search of the room or the car, and he
understood little of what the officers said. Defendant stated he
had been hired by Melon to drive the car to Chicago, but he did
not know that the car contained cannabis. Defendant introduced
the report of Dr. James Alstrum, an associate professor of
Spanish, who determined defendant had limited comprehension of
English.
At trial, defendant's attorney did not renew his
objections to the evidence he had sought to suppress nor did the
trial court make any specific findings regarding the evidence's
admissibility. The court did state in passing that it believed
defendant's consent was not necessary for a valid search of his
car. After the court found defendant guilty, defense counsel
filed neither a post-trial motion nor a notice of appeal. Of
course, defense counsel can hardly be expected to argue his own
incompetency. People v. Ruiz, 132 Ill. 2d 1, 9, 547 N.E.2d 170,
173 (1989).
In August 1994, defendant filed his pro se petition for
post-conviction relief and supporting affidavits. Defendant
averred that he was never informed by his attorney of the nature
and meaning of his right to appeal. Defendant further averred
that when he questioned the court interpreter about what the
judge had stated about an appeal, the interpreter stated, "that's
nothing, don't worry about that." After being informed of his
right to appeal by a prison law library clerk, defendant obtained
the common law record of his case and learned no appeal had been
filed.
Defendant's petition for post-conviction relief con-
tained general allegations that his counsel should have been more
diligent in his investigations, but the petition presented no
indication of what additional evidence would have been revealed
by a diligent investigation. Defendant's present appeal focuses
on two specific allegations contained in his petition: (1)
counsel had a duty to perfect an appeal, and (2) "[d]ue to
counsel's untimely filing of [defendant's] motions to suppress
evidence and statements, resulting in them being stricken,
counsel had a duty to preserve the issue of counsel's own negli-
gence in preparing and bringing forth said motions for review."
In its order summarily dismissing the petition under
section 122-2.1(a) of the Act, the trial court stated that al-
though it struck defendant's suppression motions, it considered
the same issues raised in those motions when ruling on the
admissibility of evidence during the course of trial. Because
the court resolved the issues against defendant, and because the
case was presented as a bench trial, the court stated no preju-
dice resulted from the untimely filing of the suppression mo-
tions. Since the allegations of ineffective assistance of
counsel were baseless, there was equally no basis for finding
defense counsel failed to preserve his own errors for review.
The court challenged defendant's allegations that he was not
informed of his appeal rights. First, the court noted that the
court interpreter had served without complaint for a number of
years, and defendant suggested no motive why a respected inter-
preter would fail to translate the court's admonishments. The
court stated it recalled giving the appeal admonishments at the
sentencing hearing and that the entire hearing was exceedingly
slow and careful to ensure defendant understood the proceeding.
The court noted that defendant repeatedly maintained that his
comprehension of English was so minimal that he could not under-
stand things that were said or done in the search leading to his
arrest, the taking of statements, the trial, and giving of appeal
rights. The court stated that defendant's degree of English
comprehension involved an issue of credibility which the court
resolved against defendant, based on testimony at trial and the
court's own observations of defendant. However, the court stated
that the issues raised by defendant's petition were more appro-
priate for a direct appeal, and it urged this court to grant a
late appeal if defendant so desired. Accordingly, the court
dismissed the petition as patently without merit.
The Act provides a three-step process for adjudication
of petitions for post-conviction relief. 725 ILCS 5/122-1 et
seq. (West 1992). The first step requires the trial court
consider the petition to determine whether it is frivolous or
patently without merit. If it is, the petition is dismissed.
725 ILCS 5/122-2.1(a)(2) (West 1992). If the court determines at
this first stage that the petition is not frivolous or patently
without merit, then at the second stage the court may appoint
counsel to represent an indigent defendant, and counsel will have
the opportunity to amend the post-conviction petition. The State
may then move to dismiss the petition. The third and final stage
is an evidentiary hearing if the court has not dismissed the
petition on the State's motion. People v. Lemons, 242 Ill. App.
3d 941, 944, 613 N.E.2d 1234, 1236 (1993).
This court has stated that in order to withstand
dismissal at the first stage of post-conviction proceedings, a
petition for post-conviction relief need only contain a simple
statement which presents the gist of a claim for relief, at least
in cases where nothing in the trial record contradicts that
claim. People v. Dredge, 148 Ill. App. 3d 911, 913, 500 N.E.2d
445, 446 (1986). We reasoned that requiring pro se petitioners,
who are often persons of limited education, to plead their claims
in detail would have the practical effect of depriving many
petitioners of their right to meaningful access to the courts.
Dredge, 148 Ill. App. 3d at 913, 500 N.E.2d at 446-47. In
practice, however, courts closely scrutinize post-conviction
petitions to determine whether they contain sufficient facts from
which the trial court could find a valid claim of deprivation of
a constitutional right. See Lemons, 242 Ill. App. 3d at 946, 613
N.E.2d at 1237. The trial court's decision to dismiss a petition
as frivolous or patently without merit will not be reversed
absent an abuse of discretion. People v. Smith, 268 Ill. App. 3d
574, 577, 645 N.E.2d 313, 316 (1994).
Defendant contends his petition contained the gist of a
claim of ineffective assistance of counsel because it alleged his
counsel failed to perfect an appeal. The State responds that
this claim is insufficient where (1) defendant has not alleged
that he ever communicated to counsel a desire to appeal his
conviction, and (2) defendant cannot establish he was prejudiced
by the lack of an appeal.
The failure to perfect an appeal can constitute inef-
fective assistance of counsel. People v. Fernandez, 222 Ill.
App. 3d 80, 83, 583 N.E.2d 627, 629 (1991); People v. Wilk, 124
Ill. 2d 93, 108, 529 N.E.2d 218, 223 (1988). In Wilk, the
supreme court stated that the two-pronged test of Strickland v.
Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052
(1984), would apply in post-conviction proceedings where a
defendant alleges that his attorney failed to file a post-judg-
ment motion or perfect an appeal. Wilk, 124 Ill. 2d at 108, 529
N.E.2d at 223. Under the two-pronged test, the defendant must
plead and prove that (1) his attorney's performance fell below an
objective standard of reasonableness, and (2) there is a reason-
able probability that defendant was prejudiced by the deficient
performance, i.e., "'but for counsel's unprofessional errors, the
result of the proceeding would have been different.'" Wilk, 124
Ill. 2d at 108, 529 N.E.2d at 223-24, quoting Strickland, 446
U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068. Applying
the two-pronged test, Illinois courts have dismissed and denied
post-conviction petitions where the defendants did not establish
that they were prejudiced by counsel's failure to perfect an
appeal. See, e.g., Fernandez, 222 Ill. App. 3d at 84, 583 N.E.2d
at 630; People v. Jett, 211 Ill. App. 3d 92, 98, 569 N.E.2d 1152,
1155-56 (1991).
However, in response to the United States Supreme
Court's decisions in Evitts v. Lucey, 469 U.S. 387, 83 L. Ed. 2d
821, 105 S. Ct. 830 (1985), and Penson v. Ohio, 488 U.S. 75, 102
L. Ed. 2d 300, 109 S. Ct. 346 (1988), our supreme court held that
the prejudice prong of Strickland is inapplicable in cases where
a defendant is effectively denied appellate counsel. People v.
Moore, 133 Ill. 2d 331, 339, 549 N.E.2d 1257, 1261 (1990). "[A]
criminal defendant must at some point be afforded the equivalent
of direct review and an appellate advocate; a court cannot deny a
defendant an attorney-assisted appeal by examining the record and
determining that defendant would not have succeeded on appeal in
any event." Moore, 133 Ill. 2d at 339, 549 N.E.2d at 1261.
Where a post-conviction proceeding is utilized as a remedy for a
lost right of appeal, "no showing of prejudice is required where
counsel failed to perfect defendant's appeal. Prejudice is
presumed." Moore, 133 Ill. 2d at 339, 549 N.E.2d at 1261.
Relying on Moore, the second district recently held
that the trial court erred in dismissing a defendant's post-
conviction petition where the defendant had attached affidavits
stating he had requested that his attorney file a notice of
appeal, but his attorney failed to do so. People v. Swanson, 276
Ill. App. 3d 130, 131, 657 N.E.2d 1169, 1170 (1995). These
allegations were sufficient to raise a cognizable claim even
absent a showing of prejudice. Swanson, 276 Ill. App. 3d at 132-
33, 657 N.E.2d at 1171. The proper remedy was to allow defendant
to file a late notice of appeal. Swanson, 276 Ill. App. 3d at
132, 657 N.E.2d at 1171; People v. Scott, 143 Ill. App. 3d 540,
542, 493 N.E.2d 27, 29 (1986); People v. Perez, 115 Ill. App. 3d
446, 451, 450 N.E.2d 870, 874 (1983).
Here, defendant was not required to plead facts that
showed he was prejudiced by his lack of an appeal. Nevertheless,
the mere allegation that counsel failed to perfect an appeal is
not enough. Defendant must still satisfy the first prong of
Strickland, i.e., that counsel's performance in failing to
perfect an appeal was deficient. In order to establish deficient
performance, defendant must allege that he communicated to
counsel a desire to appeal (see People v. Franzen, 251 Ill. App.
3d 813, 821-22, 622 N.E.2d 877, 885 (1993); Jett, 211 Ill. App.
3d at 97, 569 N.E.2d at 1155), or at least satisfactorily explain
why he did not request an appeal earlier.
Defendant has offered an explanation: because of his
limited English abilities, he was unable to comprehend the trial
court's admonishments regarding his appeal rights, and neither
his counsel nor the court interpreter ever explained his appeal
rights. Thus, defendant's post-conviction petition contains, on
its face, the gist of a meritorious claim for relief.
We therefore hold the trial court erred in summarily
dismissing defendant's petition. Under like circumstances, the
Swanson court remanded the case to allow the defendant to file a
late post-judgment motion, and to appeal from an adverse ruling
on any post-judgment motion filed. Swanson, 276 Ill. App. 3d at
133, 657 N.E.2d at 1171. We believe that this procedure
impermissibly skips the mandatory second and third steps of the
post-conviction process. On remand, defendant can proceed to
step two: counsel should be appointed to represent defendant and
counsel should be afforded an opportunity to amend the post-
conviction petition. After the State has been given an opportu-
nity to respond, the trial court may conduct an evidentiary
hearing (step three of the process). At the hearing, the parties
may present evidence regarding why no direct appeal was taken.
If the evidence establishes that defendant was denied a desired
appeal through no fault of his own, then the trial court shall
grant defendant any appropriate post-conviction relief, including
permission to file a late notice of appeal.
We note that the trial court urged this court to grant
a late appeal. This court is without authority to do so. Under
certain circumstances, this court may grant leave to file a late
appeal, but only if a motion is filed with this court within six
months of the expiration of the time for filing the notice of
appeal. See 134 Ill. 2d R. 606(c). Where a defendant has timely
invoked his appellate rights, only to have his appeal dismissed
through no fault of his own, this court has the power to later
reinstate the appeal. Moore, 133 Ill. 2d at 339-40, 549 N.E.2d
at 1261. More than six months have passed since the expiration
of the time for filing a notice of appeal, and defendant never
invoked his appellate rights. Post-conviction relief is now
defendant's only avenue to appeal.
Reversed and remanded.
GARMAN and KNECHT, JJ., concur.