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No. 3--01--0713

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2003

JUSTICE HOLDRIDGE delivered the Opinion of the court:

The defendant, Kevin Kellerman, appealed his conviction forarson (720 ILCS 5/20--1(a) (West 1998)). On March 5, 2003, wereversed the judgment of conviction and remanded for furtherproceedings (People v. Kellerman, 337 Ill. App. 3d 781, 786N.E.2d 599 (2003)). On June 4, 2003, in People v. Kellerman, 204Ill. 2d 672, 789 N.E.2d 303 (2003), the Illinois Supreme Courtordered this court to vacate our March 5, 2003, order and addressthe State's argument concerning the defendant's failure to supplysupporting documentation for his petition under People v.Collins, 202 Ill. 2d 59, 782 N.E.2d 195 (2002). This orderaddresses the Collins issue and otherwise retains our analysis ofthe issues in the March 5 order.

The defendant pled guilty to arson and was sentenced to 12years' imprisonment. The defendant did not file a postpleamotion or bring a direct appeal. He filed a pro sepostconviction petition (725 ILCS 5/122--1 et seq. (West 2000))which was dismissed at the first stage of the proceedings. Onappeal, the defendant argues that the trial court erred insummarily dismissing his petition because: (1) his trial counselwas ineffective by advising him that a police offer of leniency,which led to his confession, had no legal effect; and (2) histrial counsel's ineffectiveness caused his guilty plea to beinvoluntary. The State contends that (1) we lack jurisdictionbecause the defendant's notice of appeal was untimely filed; (2)the defendant's arguments are waived because he failed to raisethem in a postplea motion or a direct appeal; and (3) thedefendant's petition was properly dismissed because it lacked therequired supporting documentation and did not state why thedocumentation was missing (725 ILCS 5/122--2 (West 2000)). We(1) rule that we have jurisdiction; (2) hold that the defendant'sarguments are not waived; and (3) reverse and remand for furtherpostconviction proceedings.

BACKGROUND

The defendant was charged with committing arson. At hisplea hearing, he proposed to plead guilty pursuant to a fullynegotiated agreement with the State. The prosecutor stated thatbecause the defendant previously had been convicted of twoburglaries, he was eligible to be sentenced as a Class Xoffender. The defendant agreed to plead guilty in exchange forthe State's recommendation of a 12-year prison sentence.

The State presented its factual basis for the plea. Theprosecutor stated that the Bolingbrook Fire Departmentextinguished a fire at a residence on June 30, 1999. Followingthe police investigation of the fire, the defendant was arrestedfor arson and was advised of his Miranda rights. In a tape-recorded statement, he admitted to the police that he had set thehouse on fire.

The trial judge accepted the defendant's plea under theterms of the agreement. During the sentencing hearing, thedefendant's trial counsel stated that she had listened "to a tapewhere he made statements" to the police. The trial courtsentenced the defendant to 12 years' imprisonment. The defendantdid not pursue an appeal by filing the requisite postplea motionfollowed by an appeal from the disposition of such a motion. See188 Ill. 2d R. 604(d).

The defendant filed a pro se postconviction petition. Thepetition was accompanied by the defendant's own affidavit, butwas not accompanied by supporting affidavits, records or otherevidence. The defendant did not explain why he failed to supplyany supporting documents or other evidence.

In his petition, the defendant alleged that his guilty pleawas involuntary because of trial counsel's ineffectiveassistance. In his "Memorandum In Support" of his petition, heclaimed that during his interrogation, the police told him "theState's Attorney was on a phone ready to offer [him] a negotiatedplea of three or four years in exchange for a confession." Hesubmitted that the tape of his confession would support thiscontention.

The defendant claimed that he told his trial counsel aboutthe police offer being recorded on the tape. According to thedefendant, his attorney told him that "no police was able to makeany negotiations," and that the defendant should accept theState's offer of 12 years' imprisonment because "it was the bestoffer he would receive." He contended that because of hisattorney's ineffectiveness, his guilty plea was involuntary andthat he should be allowed to withdraw his plea.

On August 2, 2001, the trial court dismissed the defendant'spetition as "patently without merit and fail[ing] to raise asufficient constitutional question upon which relief can begranted." On August 23, 2001, the defendant placed a pro sedocument in the prison mail system titled "Notice of FilingNotice of Appeal." In this document, he stated, "The Defendantwishes to file an Appeal of the Circuit courts [sic] Order ofDismissal August 2,2001 [sic] in which the Post-Conviction reliefand cause was dismissed." The defendant's court-appointedappellate defender also filed a "Notice to Appeal" on behalf ofthe defendant on September 5, 2001.

ANALYSIS

I. Jurisdiction

The State contends that we lack jurisdiction because thedefendant's September 5, 2001, notice of appeal was untimely. The State also argues that the pro se document the defendantplaced in the prison mail system on August 23, 2001, wasinsufficient as a notice of appeal. We disagree with the latterof the State's two assertions.

The timely filing of a notice of appeal is necessary for anappellate court to have jurisdiction over a criminal matter. People v. Blanchette, 182 Ill. App. 3d 396, 538 N.E.2d 237(1989). To be timely, the notice of appeal must be filed withthe trial court within 30 days of a final order. 188 Ill. 2d R.606(b). A notice of appeal mailed within the 30-day period istimely filed. Blanchette, 182 Ill. App. 3d 396, 538 N.E.2d 237.

Supreme Court Rule 606(d) (188 Ill. 2d R. 606(d)) lists theelements to be incorporated in a notice of appeal and states thatthe document should substantially be in that form. Where adeficiency is one of form rather than substance, an appellatecourt has jurisdiction if (1) the notice fairly and accuratelyadvises the appellee of the nature of the appeal; and (2) theappellee is not prejudiced by the deficiency in form. People v.Clark, 268 Ill. App. 3d 810, 645 N.E.2d 590 (1995).

The State contends that the document the defendant filed onAugust 23, 2001, cannot be construed as a notice of appeal. Forthis proposition, the State cites People v. Sanders, 40 Ill. 2d458, 240 N.E.2d 627 (1968), and People v. Feigleson, 24 Ill. App.3d 794, 321 N.E.2d 473 (1975). In Sanders, our supreme courtruled that the defendant's request for a transcript of the trialproceedings was insufficient to function as a notice of appeal. In Feigleson, the appellate court held that the text of thedefendant's document, titled "Notice Of Appeal For New Trial,"was in the form of a posttrial motion seeking relief from thetrial court rather than from the appellate court. Feigleson, 24Ill. App. 3d at 795, 321 N.E.2d at 474.

In this case, the document the defendant placed in theprison mail system on August 23, 2001, cannot be construed aseither a request for a transcript or a motion seeking relief fromthe trial court. Therefore, we find the holdings of Sanders andFeigleson to be inapposite to the present case.

Although the defendant's August 23, 2001, document did notcontain all of the elements listed in Supreme Court Rule 606(d),it substantially complied with the rule. The document fairly andaccurately advised the State of the nature of the appeal. Furthermore, the State was not prejudiced by the document'sdeficiency in form. We liberally construe the August 23, 2001,document as the defendant's notice of appeal.

Because the defendant's August 23, 2001, notice of appealwas placed in the mail within 30 days of the order dismissing thedefendant's postconviction petition, it was timely filed. Thus,we have jurisdiction to consider the defendant's appeal.

II. Waiver

The State submits that the defendant has waived hisarguments by failing to raise them in a postplea motion or adirect appeal. Specifically, the State contends that thedefendant previously could have raised his trial counsel'sineffectiveness because the record indicates that his trialcounsel heard the tape of his confession. The State infers thatif the tape contained the police offer of leniency as alleged bythe defendant, his trial counsel would have challenged thevoluntariness of his confession in the trial court.

The principles of res judicata and waiver limit the scope ofappeals from postconviction proceedings. Issues a defendantcould have raised on direct appeal, but did not, are consideredwaived. People v. Hampton, 165 Ill. 2d 472, 651 N.E.2d 117(1995). The waiver rule does not apply if the factual basis fora claim of ineffectiveness is not contained within the originaltrial court record and, therefore, could not have been consideredon direct appeal. People v. Burns, 332 Ill. App. 3d 189, 773N.E.2d 1 (2001). To perfect an appeal from a judgment based on aguilty plea, the defendant first must file an appropriatepostplea motion and then appeal from the judgment disposing ofthat motion. 188 Ill. 2d R. 604(d).

In the present case, the defendant contends that his trialcounsel was ineffective because she erroneously advised him thatthe police offer of leniency had no legal effect. The State iscorrect that the defendant did not raise this issue in a postpleamotion or a direct appeal. The threshold question, however, iswhether the defendant could have raised this issue in suchproceedings.

During the sentencing hearing, the defendant's trial counselstated she had listened to the tape in which the defendant madestatements to the police. However, the record does not indicatewhether defense counsel heard a police offer of leniency whilelistening to the tape and, if so, whether defense counsel advisedthe defendant that such an offer of leniency had no legal effect. Because the facts regarding the defendant's postconvictionallegation of ineffective assistance were not in the trialrecord, the defendant could not have raised his postconvictionarguments in a posttrial motion or a direct appeal. Therefore,the defendant's issues are not waived.

III. Lack of Supporting Documentation

As noted above, the defendant contends that his trialcounsel was ineffective by erroneously advising him that thepolice offer of leniency had no legal effect. The State submitsthat the defendant's petition was properly dismissed because hefailed to attach documentation to support this allegation orexplain why the documentation was missing.

A postconviction petition must be accompanied by thedefendant's own affidavit. 725 ILCS 5/122--1(b) (West 2000). Additionally, the petition must be accompanied by affidavits,records, or other evidence supporting the defendant'sallegations, or state why such documents or evidence is notattached. 725 ILCS 5/122--2 (West 2000); Collins, 202 Ill. 2d59, 782 N.E.2d 195.

In Collins, the defendant pled guilty under a negotiatedagreement. His plea was accepted by the court, and he wassentenced. The defendant did not file a motion to withdraw hisguilty plea. He filed a postconviction petition in which healleged that he told his trial attorney that he wished to appeal. The defendant submitted that his attorney said that he would filean appeal, but never did. The defendant also asked his attorneyto file a motion to reconsider the sentence, about which theattorney misled the defendant. The attorney did not file amotion to reconsider. Our supreme court ruled that thedefendant's postconviction petition was properly dismissed at thefirst stage for failure to comply with section 122--2.

The Collins court stated that compliance with thedocumentation requirements of section 122--2 is mandatory withone narrow exception, citing People v. Williams, 47 Ill. 2d 1,264 N.E.2d 697 (1970). In Williams, the defendant alleged in hispostconviction petition that he was induced to plead guilty by anoral misrepresentation from his attorney concerning the sentencehe would receive. His petition was not accompanied by supportingdocuments and did not say why such documents were lacking. Thedefendant's petition was dismissed without a hearing.

The Williams court said that even though the defendant didnot explain why his postconviction petition was unaccompanied bythe proper documentation, the petition contained facts from whichit could be inferred that "the only affidavit that petitionercould possibly have furnished, other than his own swornstatement, would have been that of his attorney." The courtstated that "[t]he difficulty or impossibility of obtaining suchan affidavit is self-apparent." Williams, 47 Ill. 2d at 4, 264N.E.2d at 698. The Williams court reversed the dismissal of thedefendant's petition.

In the present case, the defendant's postconviction petitionwas accompanied by his own affidavit, under section 122--1(b),but was not accompanied by supporting documentation or anexplanation concerning its absence, as required by section 122--2. Unlike the defendant in Collins, the defendant in this casedid not allege that his trial counsel misled him concerningperfecting his appeal. Therefore, we find this case to befactually distinguishable from Collins.

Furthermore, we find the facts of this case to fit squarelywithin the Williams exception cited by the Collins court. Likethe defendant in Williams, the defendant alleged in his petitionthat his trial attorney's oral misrepresentations induced him toplead guilty. Obviously, the defendant could not be expected toobtain an affidavit from his trial counsel stating that theattorney was ineffective. Therefore, we hold that under thenarrow exception announced in Williams, the defendant's failureto comply with the documentation requirement of section 122--2did not justify dismissal of his petition.

IV. Postconviction Allegations

A. Ineffective Assistance

The defendant argues that the trial court erred indismissing his postconviction petition because it stated the gistof a constitutional claim for ineffective assistance of trialcounsel.

A postconviction petition may be dismissed at the firststage as frivolous or patently without merit only if theallegations in the petition, taken as true and liberallyconstrued, fail to present the gist of a constitutional claim. The "gist" standard presents a low threshold in which thepetitioner need only present a limited amount of detail. Thestandard of review for the first-stage dismissal of a defendant'spostconviction petition is de novo. People v. English, 334 Ill.App. 3d 156, 778 N.E.2d 218 (2002).

To determine whether a defendant has been denied his sixthamendment right to effective assistance of counsel, the defendantmust show (1) that his counsel's representation fell below anobjective standard of reasonableness; and (2) that it isreasonably probable that his case was prejudiced by his counsel'sunprofessional errors. Strickland v. Washington, 466 U.S. 668,80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984); People v. Albanese, 104Ill. 2d 504, 473 N.E.2d 1246 (1984).

If a defendant's confession was not voluntarily given, it isinadmissible at trial. A confession was voluntary if it was madefreely and without compulsion or inducement of any sort. Toconstitute an offer of leniency that renders a confessioninadmissible, a police statement must be coupled with asuggestion of a specific benefit that will follow if thedefendant confesses. People v. Johnson, 285 Ill. App. 3d 802,674 N.E.2d 844 (1996).

In People v. Heide, 302 Ill. 624, 135 N.E. 77 (1922), thedefendant was told by police officers that if he confessed, hewould be taken to the State's Attorney, who would do the best forhim. The Illinois Supreme Court ruled that the defendant'sconfession was not admissible.

In People v. Ruegger, 32 Ill. App. 3d 765, 771, 336 N.E.2d50, 54-55 (1975), police officers told the defendant that theywould "go to bat" for him on such matters as a recognizance bondand probation if he confessed. The Ruegger court affirmed thesuppression of the defendant's confession.

In the present case, the defendant's petition alleges thatthe police told him that the State's Attorney was on the phoneand was prepared to offer him three or four years' imprisonmentif he confessed. Taken as true and liberally construed, such apolice statement was an inducement for the defendant to confessin exchange for the specific benefit of a State's Attorney'snegotiated plea agreement. If the defendant's allegation istrue, his confession was involuntarily given and was inadmissibleat trial.

If we consider the defendant's postconviction allegations astrue, the defendant stated the gist of a constitutional claim forineffective assistance of trial counsel. If the defendant'sconfession was involuntarily given, his trial counsel'sperformance fell below an objective standard of performance andhis trial was prejudiced by his counsel's failure to challengethe admissibility of his confession. Therefore, as a matter oflaw, the trial court erred by dismissing the defendant'spostconviction petition at the first stage of the proceedings.

We emphasize that we express no opinion regarding the truthof the defendant's allegations. We only accept his allegationsas true and construe them liberally under the "gist" standard forfirst-stage dismissals.

B. Involuntary Guilty Plea

Because we are reversing and remanding on the basis of thedefendant's ineffective assistance claim, we need not address hisinvoluntary guilty plea argument.

CONCLUSION

For the foregoing reasons, we reverse the judgment of theWill County circuit court dismissing the defendant'spostconviction petition and remand the matter for furtherproceedings.

Reversed and remanded.

MCDADE, P.J., and LYTTON, J., concur.