Sunday, May 31, 2015

Appellate Court Declines to Extend Admonition Exception For Untimely Filed Notice of Appeal in Criminal Case

By Nate Nieman
Nieman Law Group

In People v. Moore, 2015 IL App (5th) 130125, Sammy Moore was charged with aggravated battery after striking a corrections officer at the Pinckneyville Correctional Center. The trial court held a preliminary hearing 31 days after the charges were filed against Moore. Moore, acting pro se, objected to the timeliness of the hearing, arguing that the incident occurred on March 2,2007; he was arrested and booked on March 2, 2007; but charges were not brought until August 23, 2007; and the September 24, 2007, hearing date was beyond the 30-day statutory period. The court held the preliminary hearing anyway and found probable cause.

Moore waived his right to a jury trial and agreed to a stipulated bench trial on November 12, 2008. The court informed Moore that, if he was found guilty of aggravated battery, it would sentence him to two years in the Department of Corrections, to run consecutive to the term that he was already serving. The court found Moore guilty and imposed the sentenced that it had indicated.

The court gave the following admonishment, in pertinent part, to Moore after being sentenced:

            “In order to appeal this sentence you must first file in this trial court within 30 days of today's date a written motion to withdraw your consent to the stipulated bench trial and give me a very good reason for allowing me to do so. If that motion is denied you still have 30 days from the date of that denial to file your written appeal in the Appellate Court in Mt. Vernon. You must first file a notice of appeal in the Office of the Circuit Court here in Perry County…."  
The defendant stated that he understood the instructions.

On January 11, 2013, more than four years after he was convicted and sentenced, Moore filed a pro se petition entitled “Petition for Leave to File An Untimely Post Trial Motion And Notice of Appeal,” seeking leave to file an untimely notice of appeal “on the ground that it was not due to his culpable negligence that the documents were not timely filed.” Moore explained in his petition that he had intended to appeal the denial of his pro se motion to dismiss related to the preliminary hearing issue and that he thought that defense counsel had filed a posttrial motion and notice of appeal, but only later learned that defense counsel failed to do so. Moore also filed a motion to dismiss based on the preliminary hearing issue and a notice of appeal seeking to appeal the court’s September 24, 2007, order denying his previously filed motion to dismiss.

The trial court denied Moore’s petitions, finding that "[d]efendant cannot merely make vague or conclusory assertions but must clearly demonstrate his diligent efforts to uncover matters he now claims entitle him to relief" (citing People v. Gunartt, 327 Ill. App. 3d 550 (2002)). The court held that Moore did not do so and therefore was not entitled to relief. The court dismissed the petition but granted Moore leave to refile it within 30 days, with a showing that the delay in the late filing was not due to his culpable negligence, that is, he "must allege facts showing the delay was not due to his negligent or reckless disregard of the time constraints and other circumstances of filing a timely post-conviction relief petition." Moore, 2015 IL App (5th) 130125, ¶ 13.

Moore filed a motion to reconsider, arguing that Gunartt applied only to post-conviction petitions. Moore argued that his filings should not have been characterized as a post-conviction petition and that they should have been reviewed under Illinois Supreme Court Rule 606 (eff. Feb. 6, 2013). The court denied the motion to reconsider, stating that it had characterized Moore’s filings as a post-conviction petition because the it did not have jurisdiction to consider a posttrial motion filed more than 30 days after the entry of judgment and sentence on November 12, 2008. Moore appealed.

On appeal, Moore conceded that his petition for leave to file an untimely posttrial motion and notice of appeal was filed well beyond 30 days after judgment was entered, but he argued that the court nonetheless still had jurisdiction to consider his petition because he was not properly advised of his appeal rights. The appellate court disagreed.

The appellate court began by noting that Illinois Supreme Court Rule 605 (eff. Oct. 1, 2001) sets forth the admonishments regarding the right to appeal that a criminal defendant is to receive after judgment and sentence. Moore, 2015 IL App (5th) 130125, ¶ 21 (citing People v. Henderson, 217 Ill. 2d 449, 455 (2005)). Defendants who have been found guilty following a trial are to be given admonishments pursuant to Rule 605(a), while those who have pleaded guilty should be given admonishments pursuant to Rule 605(b) and (c). Id. If stipulated evidence is introduced and the trial court finds the defendant guilty based on that evidence, the defendant is considered to have been found guilty, rather than pleading guilty, and he should be admonished under Rule 605(a). Moore, 2015 IL App (5th) 130125, ¶ 22 (citing  People v. Horton, 143 Ill. 2d 11, 20-22 (1991)). However, if the defendant stipulates that the evidence presented at the stipulated bench trial is sufficient to convict, the stipulated bench trial is “tantamount to a guilty plea,” and the defendant should be admonished pursuant to Rule 605(b) and (c). Id. 

Moore did not stipulate that the evidence given at trial would be sufficient to convict. Therefore, he should have been admonished pursuant to 605(a). Instead, the trial court gave him a modified admonishment under Rule 605(b) and (c) when it “told the defendant that prior to appealing, and within 30 days, he must first file a ‘written motion to withdraw [his] consent to the stipulated bench trial.’ ” Moore, 2015 IL App (5th) 130125, ¶ 25. Moore argued that “the admonition exception adopted by the supreme court in People v. Foster, 171 Ill. 2d 469 (1996), should be applied to appeals from faulty Rule 605(a) admonitions so that the appellate court can reach the merits of an appeal.” Id. ¶ 26.

The Foster court explained that the admonition exception “allows the appellate court to entertain appeals in cases where the defendant did not comply with Rule 604(d)'s written-motion requirement because the trial court failed to provide Rule 605(b) admonitions.” Foster, 171 Ill. 2d at 473. The “admonition exception allows appellate courts to entertain appeals in those circumstances because if a defendant is not admonished of the necessary steps to appeal from a sentence imposed upon a plea of guilty as required by Rule 605(b), it would violate procedural due process to hold a defendant responsible for noncompliance with the strictures of Rule 604(d).” Id

Moore conceded that the admonition exception had not previously been extended to incorrect admonishments under Rule 605(a), but he urged the court to do so here, arguing that an incorrect 605(a) admonition provided him with unlimited time to appeal his conviction. The appellate court, however, declined, noting that the “supreme court has made it clear that the admonitions exception does not extend the time allowed for the defendant to perfect an appeal.”
 Moore, 2015 IL App (5th) 130125, ¶ 27.

The appellate court held the trial court lacked jurisdiction when Moore filed his petition for leave to file an untimely posttrial motion and notice of appeal. Relying on People ex rel. Alvarez v. Skryd, 241 Ill. 2d 34 (2011), the court reasoned that “the admonition exception is for the appellate court to apply when the defendant files a timely notice of appeal, even though he did not comply with any conditions precedent as required by the supreme court rules.” Moore, 2015 IL App (5th) 130125, ¶ 30 (citing Skryd, 241 Ill. 2d at 42). Because there was no timely notice of appeal in Moore’s case, the admonition exception did not apply, even though Moore did not receive proper appeal admonishments. This is because the “admonition exception cannot restore jurisdiction to the circuit court after 30 days from the entry of judgment.” Id. The appellate court affirmed the trial court, concluding that it had properly dismissed Moore's motion for leave to file an untimely posttrial motion and notice of appeal where the admonition exception did not extend its jurisdiction to adjudicate the posttrial pleadings that the defendant had filed four years after judgment became final. 

Recommended Citation: Nate Nieman, Appellate Court Declines to Extend Admonition Exception For Untimely Filed Notice of Appeal in Criminal CaseThe Brief, (May 31, 2015),

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