"The Brief" - The ALA Blog

  • April 07, 2015 6:04 PM | Anonymous member (Administrator)

    On March 30, 2015, the Association hosted its annual roundtable luncheon honoring the Justices of the Illinois Appellate Court, Fourth District. Held at the University of Illinois Springfield, the Sangamon County Bar Association and the University of Illinois Springfield College of Public Affairs and Administration co-sponsored the event. 


    Prior to the luncheon, the Fourth District Appellate Court heard oral arguments on two criminal matters at the university. Ordinarily, oral arguments before the Fourth District Appellate Court are heard at the courthouse in Springfield, but each year, the Fourth District holds arguments at a local university. In previous years, the court has held oral arguments at the University of Illinois in Champaign, Illinois State University in Bloomington/Normal, Quincy University, Danville Area Community College, and Eastern Illinois University. Holding oral arguments at various locations within the district provides attorneys, students, and members of the public with convenient access to observe the court.  

    During the luncheon, ALA members and guests, which included students from several of the university's departments, were encouraged to interact with the Justices and other court personnel. The roundtable luncheon also included a judicial panel discussion featuring the Justices of the Fourth District Appellate Court. The panel featured Justices M. Carol Pope, Thomas R. Appleton, Thomas M. Harris, Lisa Holder White, James A. Knecht, and John W. Turner; Fourth District Research Director Shirley Wilgenbusch; and Fourth District Clerk Carla Bender. ALA president Steve Pflaum moderated the discussion, which included procedural issues and practical advice germane to appellate practice and procedure. 

    The ALA thanks the Justices of the Fourth District Appellate Court for another informative and enjoyable roundtable luncheon. 


  • April 03, 2015 6:52 AM | Anonymous member (Administrator)

    It’s a common question at the beginning of an appeal: Having won in the trial court, when must a party cross-appeal? Recently, in Jennings v. Stephens, 135 S. Ct. 793 (2015), the United States Supreme Court observed that while the basic rule is familiar, “that familiarity and clarity do not go hand-in-hand.”


    In Jennings, the court reached back to its precedent of some 90 years ago (United States v. American Ry. Express Co., 265 U.S. 425 (1924)(Brandeis. J.)) to repeat the familiar rule that a party may argue to affirm a judgment in its favor based on any grounds supported by the record, even if that may “involve an attack upon the reasoning of the lower court.” Only if the prevailing party seeks to enlarge its own rights or lessen those of the losing party, must it take a cross-appeal.


    In the Jennings case, a Texas inmate won a federal habeas case overturning his death sentence. The state appealed and the inmate defended the appeal on two grounds that he had prevailed on in the trial court, as well as on a third ground on which he had lost. The court of appeals reversed on the two grounds that the trial court had relied on and also ruled that it did not have jurisdiction to decide the third ground because the inmate failed to take a cross-appeal as to that.

    In a 6-3 decision, the Supreme Court reversed. The court reasoned that the inmate was not required to cross-appeal as to the third ground because that did not enlarge his rights or lessen the state’s rights under the judgment. Writing for the majority, Justice Scalia explained that the inmate sought the same relief under all three theories: a new sentencing hearing. “Whether prevailing on a single theory or all three, [the inmate] sought the same indivisible relief.”


    In reaching this conclusion, the court emphasized that a “prevailing party seeks to enforce not a district court’s reasoning, but its judgment.” It is only a judgment that defines the rights and liabilities of the parties, not the reasons given in an opinion. Because the inmate challenged only the reasoning of the lower court without seeking to enlarge his rights under the judgment or lessen the state’s, he was permitted to argue an alternative theory to affirm the judgment without taking a cross-appeal.


    The dissent argued that habeas cases arise in a “unique context” and the inmate’s raising of the third ground amounted to an additional constitutional argument that “would modify the prisoner’s rights flowing from that order.” The majority maintained that there was nothing particular about a habeas proceeding that would alter the basic rule for cross-appeals. Moreover, the court also pointed out that though relying on a different theory may alter any issue-preclusive effect in future proceedings, that should not be confused with the rights obtained under a judgment. Since the inmate did not seek to alter those rights, he was not required to cross-appeal.


    In the wake of the Jennings decision, federal courts of appeal have already applied it beyond the habeas context to general civil litigation. See Zayed v. Associated Bank, N.A., 779 F.3d 727 (8th Cir. 2015) (bank that prevailed against investor claims could urge affirmance on grounds that trial court did not reach); cf. BNSF R. Co. C. Alstom Transp., Inc., 777 F.3d 785 (5th Cir. 2015) (having failed to cross-appeal, prevailing party could not seek full rather than partial vacating of arbitration award).


    The Jennings decision reinforces that after a notice of appeal is filed, the prevailing party in the trial court must promptly assess whether any arguments it might present on appeal will simply be alternative reasons to affirm or will actually enlarge its rights or lessen those of the other side. If they are the later, then it must timely file a cross-appeal.


    (The author would like to thank his colleague, Thomas McDonell, for his assistance in preparing this post.)

    Recommended Citation: E. King Poor, SCOTUS Explains When a Winning Party Must Cross-Appeal, The Brief, (April 3, 2015), http://applawyers-thebrief.blogspot.com/2015/04/scotus-explains-when-winning-party-must.html#more.


  • March 30, 2015 12:40 PM | Anonymous member (Administrator)

    On March 24, 2015, the Association gathered at the Union League Club in Chicago to honor the Justices of the Illinois Appellate Court, First District.  The event, which allowed ALA members and guests to sit at a table with a Justice, also included a tribute to Justice Calvin Campbell, who served on the Appellate Court for 30 years. 


    ALA President Steven F. Pflaum opened the program by welcoming the Justices and the ALA members and guests. Thereafter, President Pflaum introduced Justice Shelvin Louise Marie Hall, who gave moving remarks on the passing of retired Justice Calvin Campbell. Justice Hall noted that Justice Campbell was elected to the First District in 1978, the fourth African American jurist to be elected to that court. Justice Hall recounted that Justice Campbell's "life was a lesson." He had a "genuinely courteous exterior," but would also exhibit a sharp elbow when necessary to defend his position. Justice Campbell was typically the first justice to welcome new members to the court, and he would often go out of his way to take a new justice to lunch. A veteran of World War II and an avid golfer, Justice Campbell was a passionate jurist who "left a mark of excellence."   

    Following Justice Hall's comments, President Pflaum encouraged attendees to continue their conversations with the Justices. To help facilitate the conversation, the Association provided a list of suggested questions related to appellate practice and procedure. The questions covered a range of topics, including how to approach seeking a certified question for interlocutory review and tips for oral arguments.

    The Association thanks the Justices of the Illinois Appellate Court, First District for another enjoyable roundtable luncheon. 


  • March 26, 2015 7:37 AM | Anonymous member (Administrator)

    On March 4, 2015, approximately 40 litigators from all over Illinois attended the Association’s March brown bag luncheon: Appellate Practitioners’ Advice to Trial Attorneys. Baker & McKenzie hosted the event in its Chicago office. The panelists featured ALA Secretary Joanne Driscoll, partner at the Forde Law Offices; past ALA president Karen Kies DeGrand, partner at Donohue Brown Mathewson & Smyth, LLC; and past ALA president Michael Pollard, partner at Baker & McKenzie. 


    The well-received presentation was a mix of war stories and hard-learned lessons from a trio of litigators with roughly 90 years’ litigation experience between them. All of the presenters emphasized the importance of having an “appeals person” involved in litigation teams and client counseling. Pollard said, after a particularly colorful story wherein his calm advice ultimately won over his client’s trust, that an appellate lawyer’s greatest asset is the ability to “think globally and act locally.” That is, an appellate lawyer is trained to think beyond any one case, but can intercede with timely advice at the trial level in order to steer the matter towards a sustainable, and hopefully the most successful, outcome. 

    ALA President Steven F. Pflaum was on hand to lend a personal touch to the discussion, and sharing a quick story involving each of the three panelists. During the Q&A portion, the panelists discussed a wide range of topics including interlocutory appeals as a matter of right, certified question appeals, and issues concerning the preparation of the record on appeal.

    The ALA thanks the speakers for their thoughtful insights and Baker & McKenzie for graciously hosting the event. 


  • March 22, 2015 12:41 PM | Anonymous member (Administrator)

    In re Henry B., 2015 IL App (1st) 142416, concerns whether an order of supervision entered pursuant to section 5-615 of the Juvenile Court Act of 1987 (the Act) (705 ILCS 405/5-615 et seq. (West 2014)) after a minor’s criminal trial is appealable.
 As discussed below, the short answer is “no.”


    The State charged 12-year-old defendant, Henry B., as a juvenile with felony aggravated battery and misdemeanor battery. At the defendant’s bench trial, the court granted the defendant’s motion for a directed verdict on the felony count but found him guilty on the misdemeanor battery count. At sentencing, the court “did not enter either a finding of guilty or any judgment. The judge continued the case under supervision pursuant to section 5-615(1)(b) of [the] Act (705 ILCS 405/5-615(1)(b) (West 2014) (as amended by Public Act 98-062, eff. Jan. 1, 2014)) for a period of six months ***.” (Emphasis in original). Henry B., 2015 IL App (1st) 142416, ¶ 18.


    The defendant appealed, seeking reversal of the juvenile court’s order of supervision. On appeal, the defendant argued that the State failed to prove him guilty beyond a reasonable doubt because the victim suffered no physical pain or injury as a result of the minor’s conduct. Id. ¶ 3. The State argued that the reviewing court lacked jurisdiction to entertain the appeal because the “Illinois Supreme Court rules governing juvenile delinquency proceedings do not provide for appellate review of an interlocutory order in a case that has been continued under supervision.” Id. ¶ 4. The Illinois Appellate Court, First District, agreed with the State.


    In general, the appellate court has jurisdiction to review appeals from final judgments, and does not have jurisdiction to review an interlocutory order, unless jurisdiction is specifically provided for by supreme court rule. Henry B., 2015 IL App (1st) 142416, ¶ 21 (citing In re J.N., 91 Ill. 2d 122, 126 (1982)). Two Illinois Supreme Court rules provide for appeals in juvenile delinquency proceedings: Rule 660(a) (Ill. S. Ct. R. 660(a) (eff. Oct. 1, 2001)) and Rule 662 (Ill. S. Ct. R. 662 (eff. Oct. 1, 1975)). Henry B., 2015 IL App (1st) 142416, ¶ 22. Rule 660(a) deals with final judgments and provides that in juvenile delinquency proceedings  “[a]ppeals from final judgments *** shall be governed by the rules applicable to criminal cases,” except where otherwise specifically provided. Henry B., 2015 IL App (1st) 142416, ¶ 23. Rule 662 specifically provides for interlocutory appeals in delinquency proceedings, but only under limited circumstances - when a dispositional order had not been entered within 90 days from either an adjudication of wardship or a revocation of probation or conditional discharge. Id. ¶ 24.


    The defendant conceded that Rule 662 did not apply. Id. Instead, the defendant argued that his order of supervision was a “final judgment,” and therefore appealable under Rule 660(a). Henry B.2015 IL App (1st) 142416, ¶ 26. The reviewing court disagreed, concluding “the juvenile court judge’s order continuing the case for supervision contained no finding of guilty and no judgment order.” Id. ¶ 27. The order continuing the case for supervision was therefore not final and appealable. Id. (citing Kirwan v. Welch, 133 Ill. 2d 163, 167 (1989) (“a disposition of supervision is not a final judgment," because "supervision does not dispose of the proceedings on the underlying offense but merely defers the proceedings until the conclusion of the period of supervision); In re A.M., 94 Ill. App. 3d at 89-90 (holding that an order of supervision of a minor was a continuance of the cause and did not finally dispose of the delinquency petition on the merits and was not subject to appellate review). 


    The defendant argued in the alternative that the court had appellate jurisdiction under Rule 604(b) (eff. Feb. 6, 2013), but the court found that rule was not applicable to juvenile delinquency proceedings. Rule 604(b) permitted appellate review only for “conditions of supervision” that resulted from convictions (such as restitution), and not findings of guilt. Henry B.2015 IL App (1st) 142416, ¶ 31. Unmoved by the defendant’s arguments, the reviewing court dismissed the appeal for lack of jurisdiction under both Rules 660(a) and 662, the only rules conferring jurisdiction to the appellate court in juvenile delinquency proceedings.


    Recommended Citation: Nate Nieman, Order of Supervision Following Trial in Juvenile Proceeding is Interlocutory and Not Appealable, The Brief, (March 22, 2015), http://applawyers-thebrief.blogspot.com/2015/03/order-of-supervision-following-trial-in.html.


  • March 17, 2015 3:32 PM | Anonymous member (Administrator)

    The construction of a patent is typically a matter for a judge to determine as a matter of law. Accordingly, the standard of review for a Court of Appeals reviewing a district court’s decision upholding or striking down the validity of a patent is de novo. On occasion, however, the district court must make factual findings concerning evidence extrinsic to the patent itself. The question then arises what standard of review applies to those findings.



    That question now is resolved by Teva Pharmaceuticals USA, Inc. v. Sandoz, Inc., 135 S. Ct. 831 (Jan. 20, 2015). The case involves a drug patent holder, Teva, that sued a generic manufacturer of the drug, Sandoz, for patent infringement, in which Sandoz raised a defense attacking the validity of the patent. In deciding validity, the district court heard conflicting expert evidence concerning the meaning of a term used in defining one of the patent claims, “molecular weight,” and whether that term was sufficiently definite in the context of the claim. Id. at 835-36. The court found that it was sufficiently definite and held the patent valid. Id.

    On appeal to the Federal Circuit, however, that court applied a de novo review standard to all aspects of the district court’s decision. The Federal Circuit then found the term “molecular weight” too indefinite, and it held the patent invalid. Id. at 836. Teva petitioned for certiorari, which the Supreme Court allowed.

    In an opinion by Justice Stephen Breyer, the Supreme Court reversed. He initially pointed to Fed. R. Civ. P. 52(a)(6), which states that a court of appeals “must not ... set aside” a district court’s “[f]indings of fact” unless they are “clearly erroneous.” Id. at 836-37. That mandate, according to Breyer, applies both to subsidiary and ultimate facts. Id.


    Rule 52(a)(6), moreover, is not inconsistent with statements by the Court in cases like Markman v. Westview Instruments, Inc., 517 U.S. 370 (1996), that patent claim construction falls exclusively within the province of the court. Id. at 837. Construction of patents, said Breyer, is akin to the construction of contracts and other written instruments that present questions solely of law. Id. 837-38. Where extrinsic evidence is used to determine the meaning of terms in the instrument, any factual finding regarding such evidence “precedes” the actual construction of the instrument and is reviewed for clear error like other factual findings. Id. at 837-38.


    Breyer observed that this approach is consistent with the district court’s role in presiding over the entirety of the patent proceeding and the opportunity the court has to gain familiarity with live witness testimony. Id. at 838-39. He also rejected the parallel that Sandoz sought to draw to statutory construction, which is decided as a matter of law but may include consideration of extrinsic matters such as legislative hearings. Breyer said that statutes typically involve only “general facts” and do not involve private parties and experts. Id. at 840. 


    As for how the Federal Circuit must apply clear-error review of factual findings, Breyer observed that such review does not apply to evidence intrinsic to the patent. Rather it applies only to the “evidentiary underpinnings” of claim construction when extrinsic evidence is introduced, such as disputes between experts. Id. at 840-41. The Federal Circuit here, however, rejected the district court’s fact findings without determining that they were clearly erroneous. Id.


    The Court therefore vacated the Federal Circuit’s judgment and remanded for further review.


    Justice Clarence Thomas, joined by Justice Samuel Alito, dissented. They argued generally that Rule 52(a)(6) should not apply because the subsidiary findings underlying claim construction more closely resemble the subsidiary findings underlying the construction of statutes than those underlying the construction of contracts. See id. 847-48.


    Recommended Citation: Don R. Sampen, A “Clearly Erroneous” Standard Applies to a Court of Appeals’ Review of Factual Issues Underlying a Patent Claim, The Brief, (March 17, 2015), http://applawyers-thebrief.blogspot.com/2015/03/a-clearly-erroneous-standard-applies-to.html#more.



  • March 13, 2015 1:41 PM | Anonymous member (Administrator)

    Each year, the Association sponsors a series of roundtable luncheons with the United States Court of Appeals for the Seventh Circuit and the five districts of the Illinois Appellate Court. Numbers permitting, the ALA typically seats one judge at each table, providing ALA members and guests with a unique opportunity to converse with a reviewing court jurist in a collegial and informal setting. The luncheons also typically include a panel discussion with the judges sharing their insights on appellate practice and procedure. 


    The roundtable luncheon featuring the justices of the Illinois Appellate Court, First District, will take place on March 24, 2015, at the Union League Club in Chicago. 

    The roundtable luncheon featuring the justices of the Illinois Appellate Court, Fourth District, will take place on March 30, 2015. The luncheon will be held at the University of Illinois at Springfield. A panel of the Appellate Court will sit for oral arguments before the luncheon, and an interactive judicial panel moderated by Association President Steven F. Pflaum will follow the luncheon. 

    The roundtable luncheon featuring the justices of the Illinois Appellate Court, Second District, will take place on April 7, 2015, at The Centre in Elgin, which is conveniently located across the street from the Appellate Court. 

    The luncheons for the remaining districts of the Appellate Court and the Seventh Circuit will be held later in the year. 

    CLE credit will be offered for each of the luncheons. For more information and to register, please click here


  • March 10, 2015 12:44 PM | Anonymous member (Administrator)

    The Cases Pending Committee, co-chaired by Joanne R. Driscoll (photo on left) and Clare J. Quish (photo on right), provides Association members with valuable information regarding matters set to be heard by the Illinois Supreme Court. The Supreme Court’s March Term began this week, with oral arguments scheduled for Tuesday and Wednesday, March 10 and 11, and next Tuesday and Wednesday, March 17 and 18. The Court will hear a total of 11 cases – 6 civil and 5 criminal. Below is a list of the civil cases scheduled to be heard, with the dates of oral argument:


    In re Marriage of Mueller, No. 117876 – March 11

    One West Bank, N.A. v. Standard Bank & Trust Co., No. 117950 – March 11

    In re Pension Reform Litigation, No. 118585 – March 11

    Coleman v. East Joliet Fire Protection Dist., No. 117952 – March 17

    Turcios v. The DeBruler Co., No. 117962 – March 17

    McVey v. M.L.K. Enterprises, L.L.C., No. 118143 – March 18

    The Court will hear two pension cases this term, including one concerning the constitutionality of the law affecting pensions of state workers.  Summaries for all these cases can be accessed by ALA members on the Association

    ’s website by clicking on our Cases Pendingpublication. To read abbreviated summaries for the two pension cases, please continue reading this post. 



    CONSTITUTIONAL LAW – PENSION REFORM LITIGATION


    No. 118585
    In re Pension Reform Litigation

    This case involves the direct appeal of five lawsuits, one filed in Cook County, three filed in Sangamon County, and one filed in Champaign County, which were consolidated and decided in Sangamon County. The lawsuits each alleged that Public Act 98-0599 (the “Act”) violated the pension protection clause of the Illinois Constitution of 1970 (Ill. Const. 1970, art. XIII, § 5), which prohibits the diminishment or impairment of any membership benefit in any pension or retirement system of the State. Relying on Kanerva v. Weems, 2014 IL 115811, the circuit court granted plaintiffs’ joint motions for partial summary judgment and judgment on the pleadings as to defendant’s affirmative defense or, in the alternative, to strike the affirmative defense that the Act is a justified exercise of the State’s reserved sovereign powers or police powers.


    The circuit court found that the pension protection clause was plain and unambiguous in its prohibition against diminishing or impairing anything that qualifies as a benefit of an enforceable contractual relationship resulting from membership in one of the State’s pension or retirement systems. The court also rejected the State’s sovereign or police powers defense as being not legally valid, citing Kanerva’s holding that the court “may not rewrite the pension protection clause.” Because the Act expressly provided for nonseverability, the court held the entire Act unconstitutional.

    Direct Appeal – Supreme Court Rule 302(a): 12/03/14

    Oral Argument: 03/11/15

    * * * * * *


    FAMILY LAW – PENSION


    No. 117876
    In re Marriage of Mueller

    The issue in this case involves whether the court can offset the value of a spouse’s pension in lieu of Social Security to put the spouse participating in a pension program in a similar position as the spouse participating in Social Security.

    The parties married in 1992 and in 2012, the wife filed a petition for dissolution of marriage. The trial court awarded the wife a portion of the husband’s police pension benefits without considering the value of the wife’s anticipated Social Security benefits or offsetting the value of the husband’s pension benefits by the value of Social Security benefits he would have received had he participated in Social Security instead of the pension. The husband appealed.

    The Illinois Appellate Court, Fourth District, affirmed, rejecting the husband’s argument that, because the trial court could not consider the wife’s Social Security benefits in determining the equitable distribution of marital property, fairness required the court to offset its valuation of the husband’s pension by the value of Social Security benefits he would have received had he participated. The court explained that the Illinois Supreme Court’s holding in In re Marriage of Crook, 211 Ill. 2d 437 (2004) that Social Security benefits may not be divided directly or used as a basis for an offset during dissolution proceedings, did not decide whether a spouse who participates in a pension system in lieu of Social Security must be placed in a position similar to that of the other spouse whose Social Security benefits will be statutorily exempt from equitable distribution, leaving that issue to another day. The appellate court deferred to the Illinois Supreme Court to determine whether that day had arrived and how to resolve the issue.

    Appellate Court Decision: 2014 IL App (4th) 130918-U. Steigmann, J., with Knecht, J., concurring. Appleton, P.J., dissenting.

    PLA Allowed: 09/24/14

    Oral Argument: 03/11/15



  • March 09, 2015 7:45 AM | Anonymous member (Administrator)

    A short opinion from the United States Court of Appeals for the Seventh Circuit serves as a reminder that until a plaintiff’s entire case has been decided—including any claim for prejudgment interest—there’s no final judgment for appeal. In Dual-Temp of Illinois, Inc. v. Hench Control, Inc., ___ F.3d ___, 2015 WL 304124 (7th Cir., 2015), the district court entered judgment after a trial and then checked a box on a judgment form indicating that no prejudgment interest would be awarded. Checking the box was an error, and 28 days later, the plaintiff moved the court to quantify prejudgment interest. But to avoid any issue about an untimely appeal, the defendant appealed the judgment following day. 


    Later, the district court agreed it would consider the plaintiff’s motion for prejudgment interest. As a result, the defendant informed the Seventh Circuit that its appeal should be deemed premature. The Seventh Circuit agreed and ruled that there was no final judgment because prejudgment interest “makes up part of a plaintiff’s damages.” Id. at * 1. The court explained that the district court must “quantify damages before a judgment can be final.” Also, it could not consider the judgment final on the ground that determining prejudgment interest is merely “mechanical and uncontroversial.” Accordingly, the court dismissed the appeal for lack of a final judgment.

    The ruling in Dual-Temp is straightforward enough—there is no final judgment until there has been a ruling on prejudgment interest. But, at the same time, it is also well to pause and remember this rule differs significantly from a request for attorney fees. Last year, in Ray Haulch Gravel Co. v. Central Pension Fund, 134 S. Ct. 773 (2014), the United States Supreme Court settled a split among the circuits and held that a request for attorney fees, by itself, does not toll the time for appeal. The court reasoned that even if the requested attorney fees arose from a contract, the request for fees was still collateral to the merits and did not prevent the judgment from becoming final for appeal. Id. at 780. The court noted, however, an exception under Fed. R. Civ. P. 58(e) under which a district court may allow a pending and undecided request for attorney fees to suspend the time to appeal. Id. at 781.

    Thus, requests for prejudgment interest versus those for attorney fees — though they both might be viewed as collateral to the merits — actually affect finality differently. In short, a pending request for prejudgment interest stops the appeals clock, but a request for attorney fees generally will not.


    Recommended Citation: E. King Poor, Request for Prejudgment Interest Stops the Appeals Clock in Federal Court—Unlike Attorney Fees, The Brief, (March 9, 2015), http://applawyers-thebrief.blogspot.com/2015/03/request-for-prejudgment-interest-stops.html.


  • March 06, 2015 4:02 PM | Anonymous member (Administrator)

    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.

DISCLAIMER: The Appellate Lawyers Association does not provide legal services or legal advice. Discussions of legal principles and authority, including, but not limited to, constitutional provisions, statutes, legislative enactments, court rules, case law, and common-law doctrines are for informational purposes only and do not constitute legal advice.

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