2014 IL App (3d) 120850
Ill. App. Ct.2014Background
- In 2003 Terefenko pleaded guilty to two counts of burglary and one count of attempted burglary in exchange for 4 years of TASC probation; he later violated probation and was sentenced to 42 months in prison and then released to ICE and deported to Poland.
- While in ICE custody he filed a postconviction petition (Padilla-based) claiming trial counsel failed to advise him of immigration consequences of his plea; the trial court granted the State’s motion to dismiss but the appellate court reversed and remanded for an evidentiary (third-stage) hearing.
- By the time of the evidentiary hearing (July 13, 2012) Terefenko was deported and did not appear; new counsel and his parents participated and the trial court denied the petition on August 20, 2012.
- The 30-day period for filing a postjudgment motion or notice of appeal expired on September 19, 2012; no timely filing was made. The trial court later appointed the public defender and a notice of appeal was filed October 5, 2012.
- The State moved to dismiss the appeal for lack of jurisdiction based on the untimely notice; the majority held the clerk complied with Supreme Court Rule 651(b) by mailing notice to defendant’s last known address, found defendant culpably negligent for not keeping the court informed after deportation, and dismissed the appeal for lack of jurisdiction.
Issues
| Issue | State's Argument | Terefenko's Argument | Held |
|---|---|---|---|
| Jurisdiction — was the notice of appeal timely? | Notice filed Oct 5 was untimely; final judgment Aug 20; deadline Sept 19; no timely postjudgment motion or notice so court lost jurisdiction. | Trial court extended deadline (through continuances) and Oct 5 filing was effectively timely. | Held: Notice was untimely; appellate court lacks jurisdiction; appeal dismissed. |
| Did trial court effectively extend postjudgment deadline? | No — no proper application or explicit extension; court’s remarks did not authorize extension under Church. | Court’s continuances and later appointment of appellate defender show an extension and intent to allow appeal. | Held: No valid extension; Church requirements not satisfied. |
| Compliance with Rule 651(b) — was defendant properly notified of right to appeal? | Clerk mailed Rule 651(b) notice to defendant’s last known (Romeoville) address; that satisfied the rule. | Mailing to last known address was insufficient because court knew defendant had been deported; notice should have been sought or treated differently. | Held: Mailing to last known address complied with Rule 651(b); defendant bore responsibility to update address. |
| Excusing late notice — culpable negligence / reasonable excuse? | Defendant failed to keep court informed after deportation; that is culpable negligence and bars allowance of late notice under Rule 606(c). | Deportation prevented actual receipt/participation; late filing should be excused or treated as a petition for leave to file late notice. | Held: Defendant’s failure to communicate was culpable negligence; no reasonable excuse; late notice not allowed. |
Key Cases Cited
- Church v. People, 334 Ill. App. 3d 607 (Ill. App. Ct. 2002) (trial court’s inherent authority to grant extensions for posttrial motions upon proper application and good cause)
- Fikara v. People, 345 Ill. App. 3d 144 (Ill. App. Ct. 2003) (failure to send required Rule 651(b) notice may excuse untimely appellate filing)
- Padilla v. Kentucky, 559 U.S. 356 (U.S. 2010) (counsel must advise noncitizen client regarding deportation risk of plea)
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two-prong ineffective-assistance-of-counsel test)
- In re J.T., 221 Ill. 2d 338 (Ill. 2006) (timely filing of notice of appeal vests appellate jurisdiction)
- Correa v. People, 108 Ill. 2d 541 (Ill. 1985) (prejudice inquiry where counsel gives erroneous advice about collateral consequences)
- Huante v. People, 143 Ill. 2d 61 (Ill. 1991) (counsel ineffective if fails to inform defendant of collateral consequences)
- Manning v. People, 227 Ill. 2d 403 (Ill. 2008) (discussing ineffective assistance standard and collateral-consequence context)