People v. Moore, 2023 IL App (1st) 220919

Defendant Darius Moore was convicted after a bench trial of one count of armed habitual criminal and two counts of unlawful use/possession of a weapon by a felon based on officers’ pursuit and recovery of a handgun; sentenced to 8 years on January 17, 2019.
The trial court admonished Moore about his appellate rights and told him he had 30 days to file an appeal or a motion to reconsider sentence; Moore said he understood.
Moore later learned no motion to reconsider or notice of appeal had been filed and, on October 28, 2020, filed a postconviction petition claiming trial counsel was ineffective for failing to file a notice of appeal and a motion to reconsider sentence.
The petition advanced to the second stage; the court accepted and allowed Moore’s unsworn-but-then-sworn affidavit recounting that counsel never discussed an appeal and that Moore believed counsel had filed one.
The trial court granted relief at the second stage and allowed a nunc pro tunc notice of appeal; the State moved to reconsider and requested a third-stage evidentiary hearing, which the trial court denied.
The appellate court vacated the second-stage grant and remanded for a third-stage evidentiary hearing, holding that credibility and fact issues (including trial counsel’s knowledge and communications) required live testimony under Flores-Ortega.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the trial court properly granted postconviction relief at the second stage without an evidentiary hearing	Grant at second stage was improper; no duty to consult where admonishment was clear and no reason to think defendant wanted an appeal	No third-stage hearing necessary; objective Flores-Ortega test applies and facts were undisputed	Vacated the second-stage grant and remanded for a third-stage evidentiary hearing because credibility/fact issues exist
Whether counsel had a constitutional duty to consult about an appeal	No duty where the court’s admonishment was clear and counsel had no reason to believe Moore wanted to appeal	Counsel never discussed appeal; Moore reasonably believed counsel filed an appeal	Not decided on the merits — the question requires a third-stage hearing to resolve whether counsel breached a duty under Flores-Ortega
Whether the State may seek review of the denial of its second-stage motion to dismiss	The State argued the petition failed to make a substantial showing and the court erred denying dismissal	—	Appellate court declined to consider this contention as not properly before it; remanded for evidentiary hearing

Roe v. Flores-Ortega, 528 U.S. 470 (U.S. 2000) (counsel has duty to consult about appeal when reason to think defendant would want to appeal or defendant demonstrates interest)
People v. Domagala, 2013 IL 113688 (Ill. 2013) (second-stage test: well-pled allegations that, if proven at an evidentiary hearing, would entitle defendant to relief)
People v. Bailey, 2017 IL 121450 (Ill. 2017) (postconviction proceedings framework and stage procedures)
People v. Gaultney, 174 Ill. 2d 410 (Ill. 1996) (three-stage structure of postconviction proceedings)
People v. Wheeler, 392 Ill. App. 3d 303 (Ill. App. Ct. 2009) (granting relief at second stage without a third-stage hearing was premature where credibility issues exist)
People v. Edwards, 197 Ill. 2d 239 (Ill. 2001) (if petition fails second-stage test, it must be dismissed)