People v. Norton , 2015 IL App (2d) 130599 ( 2015 )

2015 IL App (2d) 130599
No. 2-13-0599
Opinion filed February 19, 2015
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Winnebago County.
)
Plaintiff-Appellee, )
)
v. ) No. 11-CF-1763
)
ROBERT NORTON, ) Honorable
) Gary V. Pumilia,
Defendant-Appellant. ) Judge, Presiding.
______________________________________________________________________________
JUSTICE McLAREN delivered the judgment of the court, with opinion.
Justices Jorgensen and Spence concurred in the judgment and opinion.
OPINION
¶1 Defendant, Robert Norton, appeals, challenging the restitution order entered as part of the
sentence imposed for his conviction of aggravated domestic battery (720 ILCS 5/12-3.3(a) (West
2010)). His appeal is untimely under the rule in People v. Serio, 357 Ill. App. 3d 806 (2005).
We therefore dismiss the appeal for want of jurisdiction.
¶2 I. BACKGROUND
¶3 Defendant, who had a bench trial, was convicted of two counts of aggravated domestic
battery. His sentencing hearing took place on May 11, 2012. The court imposed a sentence of
imprisonment and ordered defendant to pay $150,000 in restitution to the battery victim.
2015 IL App (2d) 13-0599
Defense counsel filed a motion to reconsider the sentence, which the court heard and denied on
June 29, 2012.
¶4 Immediately upon the court’s denial of the motion to reconsider the sentence, defendant
told the court that he wanted to raise a claim of ineffective assistance of counsel and asked the
court how that would interact with his right to appeal. The court advised defendant that if he
filed the motion he had with him, “the notice of appeal is not filed,” and after the court decided
defendant’s motion defendant could “decide what [he] want[ed] to do.” Defendant asked for
further clarification, and the court told him, “[I]f you file it now, I will consider this as part of a
motion for a new trial, and I’ll deal with it here, right now before the appeal.” The State argued
that the motion “should be” a postconviction petition, but the court stated, “It makes more sense
for me to deal with it now rather than have it come back and me deal with it.” Defendant filed
his motion, and the court appointed new counsel to represent him on his motion.
¶5 Defense counsel filed what he called a supplemental motion for a new trial, stating that it
was his understanding that, under the trial court’s interpretation, the time defendant had to appeal
was not running during the pendency of the motion. The State asserted that the court had
“advised [original defense counsel] not to file the [appeal] papers at [the] last court date so the
Court would retain jurisdiction.” The court denied the motion at the conclusion of an evidentiary
hearing that ended on May 3, 2013. Defendant filed a notice of appeal immediately upon the
court’s entry of the denial.
¶6 II. ANALYSIS
¶7 On appeal, defendant asserts that we have jurisdiction of this appeal under the rule we set
out in Serio. We do not agree. Application of the rule in Serio results in this appeal’s dismissal
for untimeliness. Further, because defendant filed his notice of appeal beyond the period in
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2015 IL App (2d) 13-0599
which we may grant a motion for leave to file a late notice of appeal (see Ill. S. Ct. R. 606(c)
(eff. Mar. 20, 2009)), we lack any other possible basis to take jurisdiction of the appeal. Cf.
People v. Stanford, 2011 IL App (2d) 090420, ¶¶ 20-26 (we may deem the filing of a notice of
appeal within the time for filing a late notice of appeal as equivalent to the filing of a motion for
leave to file the late notice of appeal).
¶8 Under our holding in Serio, a pro se motion asserting the ineffectiveness of counsel that
is filed fewer than 30 days after the court has decided a postsentencing motion does not extend
the time in which a defendant may appeal. Serio, 357 Ill. App. 3d at 817. To be sure, the trial
court has both jurisdiction to consider such a motion and a duty to address the sufficiency of that
motion. Serio, 357 Ill. App. 3d at 816-17. Nevertheless, a successive postjudgment motion does
not extend the time for appeal. Serio, 357 Ill. App. 3d at 817.
¶9 The rule in Serio creates a conundrum for a defendant when, as here, the consideration of
the pro se motion delays the notice of appeal more than 30 days after the denial of the first
postjudgment motion. Here, the court did not assist defendant. Instead, it misadvised defendant
that the time in which he could appeal was tolled when, as we have shown, it was not.
Defendant’s loss of his right to appeal was rooted in incorrect advice from the court; the result
here is problematic in that respect. However, we do not have the authority to disregard our lack
of jurisdiction; such jurisdiction may be realized only by a supreme court supervisory order.
¶ 10 III. CONCLUSION
¶ 11 For the reasons stated, we dismiss defendant’s appeal for want of jurisdiction.
¶ 12 Appeal dismissed.
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