People v. Norton, 2015 IL App (2d) 130599, concerns whether a posttrial motion alleging ineffective assistance of counsel, filed after a motion to reconsider sentence, tolls the time period for filing a notice of appeal.

The defendant was convicted of two counts of aggravated battery. On May 11, 2012, following a sentencing hearing, the trial court sentenced defendant to prison and ordered him to pay $150,000 in restitution. On June 29, 2012, the court heard and denied a motion to reconsider sentence. Immediately following the court’s denial of that motion, defendant told the court that he wanted to assert a claim of ineffective assistance of counsel and asked the court how this would interact with his right to appeal. “The court advised defendant that if he filed the motion he had with him, ‘the notice of appeal is not filed,’ and after the court decided defendant’s motion defendant could ‘decide what [he] want[ed] to do.’ ” Upon further inquiry from defendant, the court clarified that “[i]f you file it now, I will consider this as part of a motion for a new trial, and I’ll deal with it here, right now before the appeal.” Defendant then filed his motion and the court appointed new counsel to represent him in connection with the motion.

Thereafter, defendant’s new attorney filed a “supplemental motion for a new trial, stating that it was his understanding that, under the trial court’s interpretation, the time defendant had to appeal was not running during the pendency of the motion.” The State asserted that the court had “advised [original defense counsel] not to file the [appeal] papers at [the] last court date so the [court] would retain jurisdiction.” On May 3, 2013, following an evidentiary hearing, the court denied defendant’s supplemental motion for a new trial and defendant immediately filed a notice of appeal, challenging the court’s restitution order.

The appellate court, however, dismissed defendant’s appeal for lack of jurisdiction. Relying on People v. Serio, 357 Ill. App. 3d 806 (2005), the court in Norton determined that it lacked jurisdiction to entertain defendant’s appeal because the notice of appeal was not timely filed. The Serio court held that “a pro se motion asserting the ineffectiveness of counsel that is filed fewer than 30 days after the court has decided a postsentencing motion does not extend the time in which a defendant may appeal.” Norton, 2015 IL App (2d) 130599, ¶ 5 (citing Serio, 357 Ill. App. 3d at 817).

Recall that defendant’s conviction and sentence became final on June 29, 2012, yet his notice of appeal was not filed until May 3, 2013, nearly a year later. Although the trial court had “advised [original defense counsel] not to file the [appeal] papers at [the] last court date so the [c]ourt would retain jurisdiction” and “understanding that, under the trial court’s interpretation, the time defendant had to appeal was not running during the pendency of the motion [filed by new defense counsel],” the court in Norton held that even though the trial court had both jurisdiction to consider a timely pro se  motion alleging ineffective assistance of counsel and a duty to hear it, filing the motion did not operate to extend the time for filing a notice of appeal. Accordingly, the notice of appeal, even though it was filed immediately after the trial court disposed of defendant’s supplemental motion for new trial, was not timely. Further, because the time period in which the appellate court could grant a motion for leave to file a late notice of appeal pursuant to Illinois Supreme Court 606(c) (eff. Mar. 20, 2009), the appellate court lacked “any other possible basis to take jurisdiction of the appeal. ” Defendant’s appeal was, therefore, dismissed.

The court in the Norton recognized that “[t]he rule in Serio creates a conundrum for a defendant when, as here, the consideration of the pro se motion delays the notice of appeal more than 30 days after the denial of the first postjudgment motion. Here, the [trial] court did not assist defendant. Instead, it misadvised defendant that the time in which he could appeal was tolled when, as we have shown, it was not. Defendant’s loss of his right to appeal was rooted in incorrect advice from the court; the result here is problematic in that respect. However, we do not have the authority to disregard our lack of jurisdiction; such jurisdiction may be realized only by a supreme court supervisory order.”

Recommended Citation: Nate Nieman, In Criminal Case, Incorrect Advice from Trial Court did not Save Untimely Notice of Appeal, The Brief, (March 6, 2015), http://applawyers-thebrief.blogspot.com/2015/03/in-criminal-case-incorrect-advice-from.html.