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Docket No. 98357-Agenda 3-September 2005.

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. ENICE LYLES, JR., Appellant.

Opinion filed December 1, 2005.

JUSTICE FREEMAN delivered the opinion of the court:

We granted leave to appeal in this case in order to considerpetitioner's challenge to the appellate court's dismissal of his appealfor want of prosecution. Pursuant to our supervisory authority, wenow reinstate the appeal and remand the cause to the appellate court.

BACKGROUND

In 1982 a Cook County jury convicted petitioner Enice Lyles, Jr.,of one count of voluntary manslaughter and two counts of first degreemurder for the deaths, respectively, of Mary Thigpen and her sonsRobert and Roderick Nichols, aged four and five. After a separatehearing he was sentenced to death for the murders and 14 years'imprisonment for voluntary manslaughter. On appeal this courtaffirmed his convictions but vacated his death sentence and remandedfor a new sentencing hearing because of prosecutorial misconductduring the sentencing hearing. People v. Lyles, 106 Ill. 2d 373 (1985).On remand the circuit court sentenced petitioner to natural lifeimprisonment for the murders and the same 14-year term for themanslaughter conviction.

Petitioner filed a pro se postconviction petition in 1991, arguingineffective assistance of trial and appellate counsel. The circuit courtdismissed the petition and the appellate court affirmed that dismissal.People v. Lyles, No. 1-92-0464 (1994) (unpublished order underSupreme Court Rule 23).

In 2001 petitioner brought the instant action by filing a secondpostconviction petition, this time alleging that his sentence violatedApprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct.2348 (2000). On August 30, 2001, the circuit court dismissed thepetition as untimely and without merit. Petitioner filed a notice ofappeal, and on September 28 the office of the State AppellateDefender was appointed to represent him in his appeal.

After first obtaining an extension of time for filing the record onappeal, the Appellate Defender sought and was granted fourextensions of time for filing petitioner's appellate brief betweenJanuary and August 2002. The last such extension resulted in a duedate of October 11, 2002.⁽¹⁾ The Appellate Defender did not file anappellate brief or any other motion by October 11, however, and onApril 18, 2003, the appellate court dismissed the appeal for want ofprosecution.

On May 23, 2003, 35 days after the appellate court dismissed theappeal, the Appellate Defender filed a "Motion to Reinstate and toAllow a Brief to be Filed Instanter." The State did not respond to themotion. The appellate court granted the motion, reinstated the appealand permitted petitioner to file his appellate brief instanter.

In the State's response brief in the appellate court, the Stateargued that the appellate court was without jurisdiction to reinstatethe appeal. The State maintained that the appellate court lostjurisdiction in the case when the court's order of dismissal becamefinal, which, according to Supreme Court Rule 367(a), was 21 daysfrom the date of the order's entry.

The appellate court agreed with the State, vacated its orderreinstating the appeal, and dismissed the appeal for lack ofjurisdiction. 347 Ill. App. 3d 100. After noting that Rule 367(a) givesa party only 21 days to file a petition for rehearing after a reviewingcourt's judgment is filed (155 Ill. 2d R. 367(a)), the court thenreferred to two decisions of this court, Woodson v. Chicago Board ofEducation, 154 Ill. 2d 391 (1993), and People v. Moore, 133 Ill. 2d331 (1990). In Woodson, this court held that the appellate court lostjurisdiction of an appeal when no petition for rehearing was filedwithin 21 days after the court had dismissed the appeal for want ofprosecution. In Moore, by contrast, this court held that a criminaldefendant ought not to lose his right to a direct appeal as the result ofineffective assistance of appellate counsel and that reviewing courtsshould reinstate direct criminal appeals which had been dismissed forwant of prosecution as the result of appellate counsel's misconduct orneglect. Moore, 133 Ill. 2d 331. The appellate court distinguishedMoore from the present case on the ground that Moore involved adirect criminal appeal and that, in such circumstances, due processrequired the effective assistance of counsel. 347 Ill. App. 3d 100. Thecourt noted that petitioner's appeal here was not a direct appeal froma criminal conviction but, rather, an appeal from a collateral,postconviction challenge to a criminal conviction, a proceeding whichdoes not guarantee the same constitutionally driven right to effectiveassistance of counsel found in the direct appeal situation. 347 Ill. App.3d 100. In light of this distinction, the appellate court concluded thatthe instant case was more akin to Woodson than Moore and,accordingly, dismissed the appeal.

Justice Hall dissented. She argued, first, that the appellate courtretained jurisdiction because the court never issued its mandate afterthe April dismissal order, citing Whitcanock v. Nelson, 81 Ill. App. 3d186 (1980). The dissent suggested that Woodson may have erred infailing to recognize the jurisdictional significance of issuance of themandate. Second, the dissent argued that due process considerationssupported reinstatement of the appeal even if the court had lostjurisdiction due to passage of time after the decision was rendered.

This court granted petitioner leave to appeal. See 155 Ill. 2d R.315(a).

ANALYSIS

Petitioner urges this court to reverse the appellate court andreinstate his appeal. He maintains that he bears no fault in thedismissal of his appeal and that his right to appeal should not be lostsolely on the basis of his appellate counsel's deficient performance. Heargues that counsel's performance was so inadequate as to haveeffectively deprived him of the representation guaranteed him by thiscourt's rules (petitioner acknowledges that he has "no constitutionalright to counsel in post-conviction appeal"). The State counters thatthe appellate court had no choice but to dismiss the appeal, becausethe appellate court's jurisdiction is conditional on compliance with thetime limits set out by this court's rules.

The two competing considerations in this case are immediatelyapparent. On the one hand, our rules unambiguously require that apetition for rehearing in the appellate court must be filed within 21days after the judgment is filed, unless the time for filing is extendedon motion. 155 Ill. 2d R. 367(a). This rule applies to criminal andpostconviction appeals as well as civil appeals. See 177 Ill. 2d R.612(p) (civil appeals provisions for petitions for rehearing in theappellate court apply in criminal appeals "insofar as appropriate"); 134Ill. 2d R. 651(d) (postconviction appeals are to follow the rulesapplicable to criminal appeals, "as near as may be"). On the otherhand, because this is an appeal from the dismissal of a postconvictionpetition, it involves a claim of a deprivation of constitutional rights ina criminal proceeding, and possibly an erroneous deprivation ofliberty. In such proceedings, petitioners are entitled to an appeal (134Ill. 2d R. 651(a)), and they are entitled to appellate counsel (134 Ill.2d R. 651(c)), who must provide at least "a reasonable level ofassistance." People v. Johnson, 192 Ill. 2d 202, 207 (2000).

However, these are not interests which the appellate court canbalance. As this court has repeatedly stated, and as the appellatemajority correctly held, the appellate and circuit courts of this statemust enforce and abide by the rules of this court. The appellate court'spower "attaches only upon compliance with the rules governingappeals." People v. Flowers, 208 Ill. 2d 291, 308 (2003). "[N]eitherthe trial court nor the appellate court has the 'authority to excusecompliance with the filing requirements of the supreme court rulesgoverning appeals.' " Mitchell v. Fiat-Allis, Inc., 158 Ill. 2d 143, 150(1994), quoting In re Smith, 80 Ill. App. 3d 380, 382 (1980). "Whilethe appellate court may exercise significant powers on review of acriminal case (see 134 Ill. 2d R. 615(b)), it does not possess the sameinherent supervisory authority conferred on our court by article VI,section 16, of the Illinois Constitution (Ill. Const. 1970, art. VI,