People v. Ross ( 2008 )

Docket No. 103972.
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v.
VERNON ROSS, Appellee.
Opinion filed June 5, 2008.
JUSTICE FITZGERALD delivered the judgment of the court,
with opinion.
Chief Justice Thomas and Justices Freeman, Kilbride, Garman,
Karmeier, and Burke concurred in the judgment and opinion.
OPINION
The central issue in this case is what remedy exists for a post-
conviction petitioner whose trial attorney failed to file a notice of
direct appeal. The State appeals the decision of the appellate court,
affirming the circuit court of Cook County’s order allowing petitioner
Vernon Ross to file a late notice of appeal. No. 1–05–2806
(unpublished order under Supreme Court Rule 23). For the reasons
that follow, we affirm.
BACKGROUND
On January 18, 1999, just before midnight, Doyinsola
Odumuyiwa was walking to his home on Chicago’s north side.
Concerned about his safety, Odumuyiwa began walking down the
middle of the street, when he noticed another man walking in the
opposite direction. As they passed, the man abruptly changed
direction and began following Odumuyiwa. At an intersection, the
man reached Odumuyiwa and spoke to him. Odumuyiwa did not
respond and kept walking. The man crossed to the sidewalk on the
right side of the street, and as Odumuyiwa proceeded to the sidewalk
on the left side, the man called out, “Come here.” When Odumuyiwa
turned around, he saw the man pointing a small gun at him.
Odumuyiwa approached, stopping less than five feet from the
man. The man pointed the gun at his chest and demanded his wallet;
Odumuyiwa complied. The man took the wallet and asked
Odumuyiwa if he had any money. Odumuyiwa said that he had only
one dollar and a credit card. After two minutes, the man told him that
he was free to leave. Odumuyiwa ran away and at the next street
immediately encountered a car occupied by plainclothes police
officers. The police officers drove Odumuyiwa back to the scene of
the robbery and, moments later, found the petitioner, whom
Odumuyiwa identified as his assailant. As the police officers neared
the petitioner, he threw some items into a bush, where an officer
retrieved Odumuyiwa’s wallet and a pellet gun, which Odumuyiwa
identified as the one used in the robbery.
The petitioner was arrested and indicted for armed robbery. At the
petitioner’s bench trial, Odumuyiwa, the police officer who recovered
the gun, and the petitioner all testified. Odumuyiwa stated that the
petitioner pointed “a black, very portable gun” at him, adding the gun
was “small” and “something you can conceal.” The police officer
stated that the gun was a “4.5 BB caliber gun with a three inch
barrel.” The State did not offer the gun itself into evidence, but the
inventory sheet lists a “MARKSMAN PLAINSMAN *** 4.5 BB
CAL. PELLET GUN 3 INCH BARREL BLACK IN COLOR,” but
does not mention any pellets. The petitioner was convicted and
sentenced to eight years’ imprisonment. He filed a posttrial motion,
arguing that the State failed to prove beyond a reasonable doubt that
the gun was a dangerous weapon. The trial court denied this motion,
stating:
“[T]he testimony in the record was that the victim was in fear
of his life when he observed what he thought to be a small
gun that could be easily concealed. The officers recovered the
-2-
gun. The victim observed the gun. Everything in the record
suggested to this Court that the victim clearly believed it to be
a dangerous weapon.”
There was no direct appeal.
Nearly two years later, the petitioner filed a pro se postconviction
petition, alleging that his trial attorney was ineffective for failing to
file a timely notice of appeal and for failing to argue on appeal that
the pellet gun was not a dangerous weapon. The trial court appointed
counsel for the petitioner, and the State filed a motion to dismiss his
petition. The trial court denied the State’s motion and conducted an
evidentiary hearing on the petitioner’s claims. After hearing
testimony from the petitioner and his attorney, the trial court
concluded that defense counsel was ineffective for failing to file a
notice of appeal. The court decided that the proper remedy would be
to allow the petitioner to file a late notice of appeal nunc pro tunc to
the date that he was sentenced.
In his direct appeal, the petitioner again argued that the State had
failed to prove beyond a reasonable doubt that the gun was a
dangerous weapon. The State responded that the appellate court did
not have jurisdiction because the notice of appeal was untimely under
Supreme Court Rule 606. See 210 Ill. 2d R. 606. The State also
asserted that the trial court could have inferred that the gun was a
dangerous weapon.
The appellate court stated that the trial court was incorrect in
making the notice of appeal nunc pro tunc to the date of the
petitioner’s sentencing, because there was no notice of appeal filed at
all. “Nonetheless,” continued the appellate court, “a criminal
defendant must at some point be afforded the equivalent of direct
review and an appellate advocate.” After discussing this court’s
holding in People v. Moore, 133 Ill. 2d 331, 338 (1990), the court
observed that because appellate jurisdiction was never invoked, the
defendant’s recourse was filing a postconviction petition. According
to the appellate court, the order granting leave to file a notice of
appeal was a proper remedy under the Post-Conviction Hearing Act
(725 ILCS 5/122–1 et seq. (West 2004)). The court turned to the
merits and concluded that the State did not prove beyond a reasonable
doubt that the pellet gun was a dangerous weapon. The appellate
court reversed the petitioner’s armed robbery conviction and
-3-
remanded so the trial court could enter judgment on the lesser-
included offense of robbery and sentence the petitioner accordingly.
No. 1–05–2806 (unpublished order under Supreme Court Rule 23).
We allowed the State’s petition for leave to appeal. 210 Ill. 2d R.
315(a).
ANALYSIS
The Post-Conviction Hearing Act provides a procedural
mechanism through which a criminal defendant can assert “that in the
proceedings which resulted in his or her conviction there was a
substantial denial of his or her rights under the Constitution of the
United States or of the State of Illinois or both.” 725 ILCS 5/122–1
(West 1998). In a postconviction proceeding, the trial court does not
redetermine a petitioner’s innocence or guilt, but instead examines
constitutional issues that escaped earlier review. People v. Blair, 215
Ill. 2d 427, 447 (2005). Here, the petitioner alleged that he received
ineffective assistance of counsel when his attorney failed to file a
notice of appeal and, consequently, failed to argue on appeal that the
gun used in the robbery was not a dangerous weapon.
Ineffective assistance of counsel claims are evaluated under the
now-familiar two-prong test of Strickland v. Washington, 466 U.S.
668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). People v. Albanese,
104 Ill. 2d 504, 526-27 (1984). Under Strickland, a defendant must
prove that defense counsel’s performance fell below an objective
standard of reasonableness and that this substandard performance
caused prejudice. People v. Johnson, 218 Ill. 2d 125, 143-44 (2005).
In Roe v. Flores-Ortega, 528 U.S. 470, 145 L. Ed. 2d 985, 120 S.
Ct. 1029 (2000), the Supreme Court extended Strickland to
ineffective-assistance claims based upon defense counsel’s failure to
file a notice of appeal: “[W]hen counsel’s constitutionally deficient
performance deprives a defendant of an appeal that he otherwise
would have taken, the defendant has made out a successful ineffective
assistance of counsel claim entitling him to an appeal. Flores-Ortega,
528 U.S. at 484, 145 L. Ed. 2d at 1000, 120 S. Ct. at 1039.
The performance and prejudice prongs of Strickland still apply,
but they are tailored to fit this context. Regarding performance, it is
professionally unreasonable to disregard specific instructions from the
-4-
defendant to file a notice of appeal. Rodriquez v. United States, 395
U.S. 327, 23 L. Ed. 2d 340, 89 S. Ct. 1715 (1969).1 Here, the
petitioner filed a pro se notice of appeal after he was found guilty by
the trial court, but before sentencing, and withdrew it as premature.
After he was sentenced on August 10, 2000, he did not file another
notice of appeal, and neither did his attorney. In his pro se
postconviction petition, the petitioner alleged:
“It was the duty and obligation of [defense counsel] to protect
[petitioner’s] rights by filing a timely Notice of Appeal.
[Petitioner] was not in agreement with the guilty finding and
sentence he received and made it clear to [defense counsel]
that he wanted to appeal this judgment. [Defense counsel]
stated that he would file [a] Notice of Appeal on behalf of his
Client and Petitioner assumed that a Notice of Appeal had
been filed in this case.”
At the evidentiary hearing on his petition, the petitioner testified that
he told defense counsel after the trial court’s finding of guilt that he
wished to appeal his conviction. Defense counsel could not recall
such a conversation.
The record thus reveals that the petitioner communicated his
desire for a direct appeal to defense counsel. As the trial court
correctly stated, filing of a notice of appeal is a ministerial task (see
Flores-Ortega, 528 U.S. at 477, 145 L. Ed. 2d at 995, 120 S. Ct. at
1035), and defense counsel’s performance in failing to file that notice
was substandard.
Regarding prejudice, a defendant must demonstrate that there is
a reasonable probability that, but for counsel’s deficient
representation, the defendant would have appealed. Flores-Ortega,
528 U.S. at 484, 145 L. Ed. 2d at 1000, 120 S. Ct. at 1039. Stated
differently, prejudice may be presumed when defense counsel’s
ineffectiveness rendered appellate proceedings nonexistent,
essentially denying the defendant’s right to appeal. Flores-Ortega,
1
This is not a case in which the defendant’s wishes were unclear and
defense counsel failed to consult with the defendant regarding an appeal.
In such a case, the performance calculus is different. See People v. Torres,
No. 104308 (April 17, 2008).
-5-
528 U.S. at 484, 145 L. Ed. 2d at 999-1000, 120 S. Ct. at 1038-39.
In Moore, the defendant was convicted of first degree murder and
attempted armed robbery and sentenced to 80 years’ imprisonment.
His trial attorney filed a timely notice of appeal, but the appeal was
dismissed for want of prosecution after the attorney failed to file a
docketing statement. Years later, the defendant filed a motion to
reinstate his appeal, which the appellate court denied. This court
reinstated the defendant’s appeal. Moore, 133 Ill. 2d at 336.
Reviewing Evitts v. Lucey, 469 U.S. 387, 83 L. Ed. 2d 821, 105 S. Ct.
830 (1985), we observed that a defendant whose appeal is dismissed
due to ineffective assistance of counsel has two procedural routes to
relief: a motion to reinstate the appeal, addressed to the appellate
court, or a postconviction petition, addressed to the trial court. Moore,
133 Ill. 2d at 337. We continued:
“[G]iven the Evitts decision and the United States Supreme
Court’s subsequent decision in Penson v. Ohio[, 488 U.S. 75,
86, 102 L. Ed. 2d 300, 312-14, 109 S. Ct. 346, 352-54
(1988)], it would appear that a criminal defendant must at
some point be afforded the equivalent of direct review and an
appellate advocate; a court cannot deny a defendant an
attorney-assisted appeal by examining the record and
determining that defendant would not have succeeded on
appeal in any event. [Citation.] Strickland v. Washington
(1984), 466 U.S. 668, 80 L. Ed. 2d 674, 1014 S. Ct. 2052,
cannot be applied where a defendant is effectively denied
appellate counsel; in such an instance prejudice is presumed
to have resulted. [Citation.] Although a post-conviction
proceeding can, and should, be utilized in certain
circumstances as a remedy for a lost right of appeal, where it
is used, no showing of prejudice is required where counsel
failed to perfect defendant’s appeal.” Moore, 133 Ill. 2d at
339.2
2
In a noncapital case, an appeal is perfected by filing a notice of appeal,
and later filing a docketing statement, the record, and an appellant’s brief.
See People v. Mena, 337 Ill. App. 3d 868, 872 (2003); see generally
Coppedge v. United States, 369 U.S. 438, 442, 8 L. Ed. 2d 21, 26, 82 S. Ct.
917, 919 (1962) (“The only requirements a defendant must meet for
-6-
The question becomes, then, simply what relief a postconviction court
may order to remedy defense counsel’s failure to file a notice of
appeal.
According to the State, the trial court had no authority to allow
the petitioner to file a late notice of appeal because Supreme Court
Rule 606 does not permit a postconviction trial court to disregard the
time limits for filing notices of appeal and late notices of appeal. A
notice of appeal confers jurisdiction on the appellate court (210 Ill. 2d
R. 606(a)), and it must be filed within 30 days after the entry of the
final judgment or a timely motion to reconsider that judgment (210
Ill. 2d R. 606(b)). Supreme Court Rule 606(c) provides for late
notices of appeal:
“On motion supported by a showing of reasonable excuse
for failing to file a notice of appeal on time filed in the
reviewing court within 30 days of the expiration of the time
for filing the notice of appeal, or on motion supported by a
showing by affidavit that there is merit to the appeal and that
the failure to file a notice of appeal on time was not due to
appellant’s culpable negligence, filed in the reviewing court
within six months of the expiration of the time for filing the
notice of appeal, in either case accompanied by the proposed
notice of appeal, the reviewing court may grant leave to
appeal and order the clerk to transmit the notice of appeal to
the trial court for filing.” 210 Ill. 2d R. 606(c).
Thus, the appellate court can allow a defendant to file a late notice
of appeal within 30 days of the expiration of the appeal period, if the
defendant shows a reasonable excuse, or within six months of the
expiration of the appeal period, if the defendant shows a meritorious
issue and a lack of culpable negligence. The State argues that because
neither the trial court nor the appellate court may excuse compliance
with our rules governing appeals (see Wauconda Fire Protection
District v. Stonewall Orchards, LLP, 214 Ill. 2d 417, 427 (2005),
quoting Mitchell v. Fiat-Allis, Inc., 158 Ill. 2d 143, 150 (1994),
quoting In re Smith, 80 Ill. App. 3d 380, 382 (1980)), the trial court
perfecting his appeal are those expressed as time limitations within which
various procedural steps must be completed”).
-7-
here improperly allowed the petitioner to file a late notice of appeal
more than five years after he was sentenced, well beyond the time
limits of Rule 606(c).
The State relies upon People v. Lyles, 217 Ill. 2d 210 (2005). In
Lyles, the defendant was convicted of voluntary manslaughter and
two counts of first degree murder. He was sentenced to death for the
murders and 14 years’ imprisonment for voluntary manslaughter. On
appeal, this court affirmed the defendant’s convictions, but vacated
his sentences and remanded because of prosecutorial misconduct
during the sentencing hearing. On remand, the defendant was
sentenced to life imprisonment for the murders and 14 years’
imprisonment for voluntary manslaughter. The defendant filed a pro
se postconviction petition, alleging ineffective assistance of trial and
appellate counsel. The trial court dismissed the petition, and the
appellate court affirmed.
The defendant then filed a second pro se postconviction petition,
alleging that his sentence violated Apprendi v. New Jersey, 530 U.S.
466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). The trial court
dismissed this petition as well, and the defendant filed a notice of
appeal. The trial court appointed the State Appellate Defender to
represent the defendant. After four extensions, appellate counsel
never filed a brief for the defendant, and the appellate court dismissed
the defendant’s appeal for want of prosecution. More than a month
later, appellate counsel filed a motion to reinstate this appeal; the
State did not object, and the appellate court granted the motion and
allowed the defendant to file his brief instanter. In its response brief,
however, the State argued that the appellate court lost jurisdiction
when its dismissal order became final 21 days after it was entered.
The appellate court agreed, vacated its order reinstating the appeal,
and dismissed the appeal for lack of jurisdiction. This court granted
the defendant’s petition for leave to appeal.
Initially, we noted two competing considerations: Supreme Court
Rule 367(a) requires that a petition for rehearing must be filed within
21 days after a judgment is entered, but postconviction petitioners are
entitled to an appeal and appellate counsel. Lyles, 217 Ill. 2d at 215-
16. We stated, “these are not interests which the appellate court can
balance.” Lyles, 217 Ill. 2d at 216. That is, the appellate court cannot
excuse compliance with this court’s rules governing appeals; its
-8-
power to reinstate an appeal ends when its jurisdiction does, and it
does not possess the supervisory authority of this court. Lyles, 217 Ill.
2d at 216. Thus, we held that the appellate court acted correctly in
vacating its order and dismissing the defendant’s appeal, but we used
our supervisory authority to reinstate the defendant’s appeal. Lyles,
217 Ill. 2d at 216, 220.
Lyles does not mention Rule 606, but to some appellate court
panels, its application is unmistakable. In People v. Gutierrez, 376 Ill.
App. 3d 182 (2007), the defendant was convicted of first degree
murder and attempted first degree murder, and he was sentenced to
60 years’ imprisonment. After sentencing, private defense counsel
withdrew, and the trial court appointed the State Appellate Defender
to proceed with the defendant’s appeal. No notice of appeal was filed.
Nearly three years later, the defendant filed a postconviction petition,
alleging that defense counsel was ineffective for failing to file a
notice of appeal. The trial court allowed the defendant to file a late
notice of appeal.
The appellate court ordered the parties to brief the issue of
jurisdiction, and then dismissed the defendant’s appeal. Gutierrez,
376 Ill. App. 3d at 183. The appellate court observed that the
defendant was not culpable in the loss of his direct appeal, but
referred to Rule 606, which sets time limits for filing a notice of
appeal or a late notice of appeal. The court stated:
“No one can reasonably deny the notice of appeal ordered
by the trial court was outside the authority of Rule 606(b).
The question in this case is whether the trial and appellate
courts are free to bypass the rule when appointed counsel does
not file a timely notice of appeal. The supreme court supplied
the answer in [Lyles].” Gutierrez, 376 Ill. App. 3d at 184.
After briefly reviewing Lyles, the appellate court concluded that the
answer was an “emphatic no.” Gutierrez, 376 Ill. App. 3d at 184.
According to the State, Supreme Court Rule 606(c) is not the only
impediment to allowing the petitioner to file a late notice of appeal.
The State asserts that section 122–6 of the Post-Conviction Hearing
Act does not list a late notice of appeal among the remedies available
to a postconviction trial court. See People v. Ferro, 195 Ill. App. 3d
282, 287 (1990) (“there is no authority granted in section 122–6 of
-9-
the [Post-Conviction Hearing] Act to order a new appeal”); accord
People v. Hightower, 233 Ill. App. 3d 188, 191 (1992). Section 122–6
provides: “If the court finds in favor of the petitioner, it shall enter an
appropriate order with respect to the judgment or sentence in the
former proceedings and such supplementary orders as to
rearraignment, retrial, custody, bail or discharge as may be necessary
and proper.” 725 ILCS 5/122–6 (West 2004).
Though it does not involve a claim that defense counsel failed to
file a notice of appeal, People v. Golden, 369 Ill. App. 3d 639 (2006),
which we also accepted for review and have resolved this date
(People v. Golden, No. 104315 (June 5, 2008)), is relevant here. In
Golden, the appellate court, relying on Ferro and Hightower, noted,
“Section 122–6 mentions only trial proceedings as the subjects of the
trial court’s power. Appellate proceedings are nowhere mentioned.”
Applying the maxim of statutory construction expressio unius est
exclusio alterius, the court concluded that section 122–6 does not
authorize the trial court to allow a late notice of appeal. Golden, 369
Ill. App. 3d at 642-43. This interpretation of section 122–6, stated the
appellate court, harmonizes that statute with Rule 606(c). Golden,
369 Ill. App. 3d at 643. The appellate court, however, did not
foreclose all avenues of relief:
“Our holding that a trial court has no authority to allow a
late notice of appeal does not leave without a remedy a
defendant whose direct appeal was frustrated by the errors of
appellate counsel. The defendant may bring a postconviction
challenge arguing that his appellate counsel was ineffective
under the performance-prejudice test of Strickland.” Golden,
369 Ill. App. 3d at 645-46.
If a defendant still wants a direct appeal, his recourse lies in the
supervisory authority of this court. Golden, 369 Ill. App. 3d at 646,
citing Moore, 133 Ill. 2d at 332.
The State is correct: section 122–6 does not specifically mention
leave to file a late notice of appeal among the remedies available to
a trial court in a postconviction proceeding. The State, tracking
Golden, insists that the statute is consequently limited to actions
within the trial court’s jurisdiction and includes “steps that the trial
court is both able and best-suited to make.” Allowing the petitioner
to file a late notice of appeal is unnecessary, the State argues, because
-10-
“the trial court has other actions it may take to fashion a suitable
remedy for a successful petitioner.” These actions include treating a
postconviction petition as the “functional equivalent” of a direct
appeal. According to the State, “once a defendant establishes that he
was denied a direct appeal as a result of ineffective assistance of
counsel, he should be permitted to raise in a post-conviction
proceeding any claim he could have raised on direct appeal without
the particular restrictions of the Post-Conviction Hearing Act (such
as waiver, timeliness and the requirement of a constitutional claim)
imposing obstacles of relief.” The State then, while insisting that the
Act’s listed remedies are exclusive, is apparently willing to relax the
Act’s requirement of a constitutional claim.
A postconviction claim of ineffective assistance of counsel in
failing to perfect an appeal implicates both the right to counsel on
appeal and the right to appeal. Cf. People v. Frank, 48 Ill. 2d 500, 504
(1971) (holding that the Act is also the “proper vehicle for review of
those issues as to which review by direct appeal has been
unconstitutionally denied by the deprivation of the right to appeal, the
right to competent counsel on appeal, or the concept of fundamental
fairness”). A criminal defendant has no federal constitutional right to
a direct appeal, but under the Illinois Constitution the right to appeal
a criminal conviction is fundamental. See Ill. Const. 1970, art. VI, §6.
Though the right to counsel and the right to appeal overlap, a
petitioner, like Ross, who claims that defense counsel was ineffective
for failing to file a notice of appeal is chiefly arguing the right to
appeal was denied. The concern is the appeal itself, not necessarily its
outcome. The defendant’s trial may have been procedurally and
substantively unassailable, but the defendant was deprived of the
constitutional right to direct review of the conviction and sentence by
an appellate panel. The remedy, then, should fit the wrong. A
defendant’s whose attorney never filed a notice of appeal is entitled
to that appeal, not its functional equivalent. See Peguero v. United
States, 526 U.S. 23, 28, 143 L. Ed. 2d 18, 24, 119 S. Ct. 961, 965
(1999) (“when counsel fails to file a requested appeal, a defendant is
entitled to *** an appeal”).
A postconviction petition is no substitute for a direct appeal. See
People v. West, 187 Ill. 2d 418, 425 (1999) (a postconviction petition
is a collateral attack upon a prior conviction and sentence, not a
-11-
substitute for or an addendum to a direct appeal). A postconviction
petition is considered by a single trial court judge; a direct appeal is
considered by three appellate court judges. A postconviction petition
must present the gist of a constitutional claim, or face summary
dismissal by the trial court; a direct appeal may present any issue of
trial error, constitutional or not. Most importantly, a defendant is
entitled to effective assistance of counsel in a direct appeal, but there
is no corresponding constitutional right to effective assistance of
postconviction counsel. See People v. Pinkonsly, 207 Ill. 2d 555, 567
(2003).
We have declined to apply the general rule that a defendant is
bound by the acts of defense counsel in cases involving appeals
dismissed for want of prosecution. In People v. Brown, 39 Ill. 2d 307
(1968), we stated:
“For a representative system of litigation to function, it is
self-evident that under most circumstances clients must be
bound by the acts of their lawyers. However, it is equally self-
evident that a mechanical application of this legal proposition
can lead to harsh results repugnant to commonly held notions
of justice and fair play. *** These results can be even harsher
in a criminal case than a civil one since in the latter suit the
aggrieved client has, in theory, a malpractice action against
his attorney for damages, while in the former no attorney can
restore his client’s lost liberty. This distinction in itself
mitigates against inflexibly applying this agency rule to waive
substantive rights of defendants in criminal prosecutions.”
Brown, 39 Ill. 2d at 310-11.
See also People v. Jacobs, 61 Ill. 2d 590, 592 (1975) (“From the
record before us it appears that the defendant has been deprived of his
right to direct appeal as a consequence of circumstances over which
he had little, if any, control”); accord People v. Mims, 82 Ill. 2d 63,
66 (1980); People v. Aliwoli, 60 Ill. 2d 579, 582 (1975).
A line of appellate court cases has taken this reasoning and
afforded relief in the form of late notices of appeal, despite Rule
606(c) and section 122–6, to defendants whose attorneys have failed
to file notices of appeal. In People v. Perez, 115 Ill. App. 3d 446
(1983), the defendant was convicted of murder, attempted murder,
and two counts of armed violence, and sentenced to 50 years’
-12-
imprisonment. More than a year after sentencing, the defendant filed
a postconviction petition, requesting appointed counsel for a direct
appeal and leave to file a late notice of appeal. The trial court denied
the State’s motion to dismiss the petition and allowed the defendant
to file a late notice of appeal. On appeal, the State argued that the trial
court lacked the authority to grant this relief. The appellate court
answered, “Although the relief granted by the trial court in this
instance is not the usual remedy provided in a post-conviction
proceeding, under these circumstances it was the appropriate relief.”
Perez, 115 Ill. App. 3d at 451. The appellate court quoted the Act,
and concluded that the trial court is limited in fashioning a remedy
not by section 122–6, but only by the purpose of the Act, “which is to
promote the concept of fundamental fairness.” Perez, 115 Ill. App. 3d
at 451, citing Frank, 48 Ill. 2d at 504.
Subsequent cases have tracked Perez, holding that the trial court
may allow the defendant to file a late notice of appeal, even if it has
lost jurisdiction. See People v. Thomas, 292 Ill. App. 3d 891, 895
(1997); People v. Swanson, 276 Ill. App. 3d 130, 132 (1995); People
v. Scott, 143 Ill. App. 3d 540, 542 (1986); see also People v. Cole,
287 Ill. App. 3d 147 (1997). These decisions reflect a concern with
providing any defendant who so desires at least one full appellate
review of a conviction. And they are consistent with Moore, where
we expressed a preference for appellate court proceedings: “We see
no reason to waste the time and resources of an already overburdened
circuit court by requiring yet another circuit judge to rule on matters
pertaining to defendant’s trial, only to have the matter ultimately
return to the appellate court on appeal from the circuit court’s post-
conviction ruling.” Moore, 133 Ill. 2d at 339-40.
Perez and its progeny reach a result that best serves the
constitutional interests involved when defense counsel’s
ineffectiveness results in a denial of the right to appeal. The broad
purpose of the Act is to enable the trial court “to review the
constitutional integrity or ‘fundamental fairness’ of the trial
proceedings.” See People v. Kubik, 214 Ill. App. 3d 649, 658-59
(1991). Section 122–6 is flexible enough to include leave to file a late
notice of appeal among the remedies available to a trial court in a
postconviction proceeding. The Act, thus construed, constitutes a
very limited exception to Rule 606. We hold that when a
-13-
postconviction petitioner demonstrates that defense counsel was
ineffective for failing to file a notice of appeal, the trial court may
allow the petitioner leave to file a late notice of appeal.
After finding that the petitioner’s late notice of appeal supplied
jurisdiction, the appellate court here addressed the merits of his
appeal. Likewise, we turn to the merits. The appellate court
determined that the State had failed to prove beyond a reasonable
doubt that the pellet gun used in the robbery was a dangerous weapon.
The State argues that the appellate court failed to apply the
appropriate standard of review to the sufficiency of the evidence.
Due process requires proof beyond a reasonable doubt in order to
convict a criminal defendant. People v. Cunningham, 212 Ill. 2d 274,
278 (2004). When presented with a challenge to the sufficiency of the
State’s evidence, a reviewing court must determine whether “ ‘after
viewing the evidence in the light most favorable to the prosecution,
any rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt.’ ” (Emphasis in original.)
People v. Collins, 106 Ill. 2d 237, 261 (1985), quoting Jackson v.
Virginia, 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781,
2789 (1979). Under this standard, the reviewing court does not retry
the defendant, and the trier of fact remains responsible for making
determinations regarding the credibility of witnesses, the weight to be
given their testimony, and the reasonable inferences to be drawn from
the evidence. See People v. Emerson, 189 Ill. 2d 436, 475 (2000). But
merely because the trier of fact accepted certain testimony or made
certain inferences based on the evidence does not guarantee the
reasonableness of its decision. A conviction will be reversed where
the evidence is so unreasonable, improbable, or unsatisfactory that
there remains a reasonable doubt of defendant’s guilt. People v.
Smith, 185 Ill. 2d 532, 542 (1999).
A person commits armed robbery when he or she commits
robbery while armed with a dangerous weapon. See 720 ILCS 5/18–1,
18–2(a) (West 2004). In People v. Dwyer, 324 Ill. 363 (1927), we
construed the predecessor to the current armed robbery statute and
acknowledged that some weapons are dangerous (or deadly) per se,
and other weapons are dangerous in the manner they are used:
“A gun, pistol or dirk-knife is itself deadly, while a small
pocket knife, a cane, a riding whip, a club or baseball bat may
-14-
be so used as to be a deadly weapon. [Citations.] A weapon
with which death may be easily and readily produced is a
deadly weapon; anything made for the purpose of destroying
life or for another purpose *** if it is a thing with which death
can be easily and readily produced, the law recognizes as a
deadly weapon. [Citation.] Where the weapon in question and
the manner of its use are of such character as to admit of but
one conclusion, the question whether or not it is deadly is one
of law for the court to determine, but when the character of
the weapon is doubtful or the question depends upon the
manner of its use it is a question for the jury to determine
from a description of the weapon, from the manner of its use
and the circumstances of the case.” Dwyer, 324 Ill. at 365.
Our holding in Dwyer is less than clear. Although that case hints
that any gun is dangerous per se because it is an object that can
readily produce death, it is difficult to characterize an unloaded gun
as such an object. The appellate court aptly summarized the
authorities in People v. Greer, 53 Ill. App. 3d 675, 681-82 (1977):
“Illinois case law indicates that a gun is a dangerous weapon
per se, unless it is shown that the particular weapon involved
in the robbery was not dangerous or, in other words, that the
law presumes that an object which has the outward
appearance of a gun is dangerous (i.e. loaded and operable),
but this presumption may be rebutted by proof that it is not.”
The Greer court noted that, while this approach is sensible, it remains
constitutionally suspect because the presumption shifts to the
defendant the burden of proving that the weapon was not dangerous.
Greer, 53 Ill. App. 3d at 682 n.1.
The appellate court here seized upon this statement in holding that
the presumption identified in Greer is an unconstitutional mandatory
rebuttable presumption (see People v. Pomykala, 203 Ill. 2d 198, 203
(2003)), and that “the State may not rely on the presumption that a
BB gun is loaded or []operable.” No. 1–05–2806 (unpublished order
under Supreme Court Rule 23). The State argues that the trial court
did not rely upon a mandatory presumption but instead made a
permissible inference from the evidence presented. “Ultimately,”
contends the State, “whether the gun was dangerous was an issue
properly resolved by the trial court sitting as trier of fact, and the trial
-15-
court’s finding that the gun was a dangerous weapon should have
been viewed in the light most favorable to the [State].”
Our decision in People v. Skelton, 83 Ill. 2d 58 (1980), is
instructive. In Skelton, the defendant robbed a discount store, and a
toy gun was found in his waistband shortly thereafter. The gun was
made of hard plastic except for the barrel, which was made of thin
“tinny metal.” The gun was 4½-inches long, and it was quite light.
The defendant was convicted of armed robbery and sentenced to 10
years’ imprisonment. The appellate court reversed, holding that the
toy gun was not a dangerous weapon. We allowed the State’s petition
for leave to appeal.
Initially, we noted a split in authorities on whether a toy gun could
be considered a dangerous weapon. Skelton, 83 Ill. 2d at 62. Courts
using a subjective approach look to the victim’s perception of the
gun, while courts using an objective approach look to the nature of
the gun. Both approaches, we stated, suffer from “logical and
practical difficulties.” Skelton, 83 Ill. 2d at 62. Based on the language
of the armed robbery statute, which requires a person to carry or to be
armed with a dangerous weapon, we concluded that the legislature
had rejected the subjective approach. Skelton, 83 Ill. 2d at 63. Though
the “weight of authority” employing the objective approach holds that
unloaded guns are dangerous weapons, we acknowledged that this
result was problematic. Skelton, 83 Ill. 2d at 63-64. We clarified:
“[A] weapon can be dangerous, even though used in a manner
for which it was not designed or intended. Thus, a rifle or
shotgun, whether loaded or not, may be used as a club with
devastating effect. Similarly, a handgun, when gripped by the
barrel and used as a bludgeon, is equally dangerous whether
loaded or unloaded. [Citations.]
***
*** Most, if not all, unloaded real guns and many toy
guns, because of their size and weight, could be used in
deadly fashion as bludgeons. Since the robbery victim could
be badly hurt or even killed by such weapons if used in that
fashion, it seems to us they can properly be classified as
dangerous weapons although they were not in fact used in that
manner during the commission of the particular offense. It
-16-
suffices that the potential for such use is present; the victim
need not provoke its actual use in such manner.” Skelton, 83
Ill. 2d at 64-66.
Whether an object is sufficiently susceptible to use in a manner likely
to cause serious injury is generally a question of fact. Skelton, 83 Ill.
2d at 66.
Since Skelton, appellate court cases have refined the common law
definition of dangerous weapon by dividing dangerous objects into
three categories: (1) objects that are dangerous per se, such as loaded
guns; (2) objects that are not necessarily dangerous, but were actually
used in a dangerous manner during the robbery; and (3) objects that
are not necessarily dangerous, but may become dangerous when used
in a dangerous manner. See People v. Lindsay, 263 Ill. App. 3d 523,
528 (1994); People v. Burge, 254 Ill. App. 3d 85, 90 (1993). This
effort at categorization is nothing more than a recognition of the
proper role for the trier of fact. Contrary to the holding of the
appellate court here and in Greer, Illinois cases do not create a
mandatory presumption that any gun is a dangerous weapon. Instead,
our cases conclude that the trier of fact may make an inference of
dangerousness based upon the evidence. The State may prove that a
gun is a dangerous weapon by presenting evidence that the gun was
loaded and operable, or by presenting evidence that it was used or
capable of being used as a club or bludgeon. Here, the State did
neither.
In People v. Thorne, 352 Ill. App. 3d 1062 (2004), the defendant
was charged with armed robbery. At trial, the victim testified that the
defendant stuck a “black pistol” in his back and to his head. A police
officer described the gun as a hard object and identified it as a
Marksman .177-caliber black BB gun. The State did not introduce the
gun into evidence and provided no pictures of it. The defendant was
convicted, and he appealed.
The appellate court held that the State’s evidence was insufficient.
Thorne, 352 Ill. App. 3d at 1073. Relying upon earlier appellate court
cases involving toy guns and pellet guns, the appellate court stated:
“In all the cases that have found guns that are incapable of
firing bullets to be dangerous weapons under the armed
robbery statute, there was either evidence (1) that the gun was
-17-
actually used in a dangerous manner, or (2) that the character
of the weapon was such that it could conceivably be used as
a bludgeon. [Citations.] In every case finding that an unloaded
gun could have been used as a bludgeon and, therefore, could
be considered a dangerous weapon, there was evidence
presented as to the physical characteristics (weight or metallic
nature) of the weapon. Here, the State failed to present such
evidence.” Thorne, 352 Ill. App. 3d at 1072-73.
The State proved only that the defendant had a small BB gun and that
it was a hard object. Thorne, 352 Ill. App. 3d at 1073.
As in Thorne, the evidence regarding the petitioner’s gun was
thin. Odumuyiwa testified that the gun was small, portable, and
concealable; the police officer testified that the gun was a .177-caliber
pellet gun with a three-inch barrel. The State never presented the gun
or photographs of the gun at trial. There was no evidence that the gun
was loaded, there was no evidence that it was brandished as a
bludgeon, and there was no evidence regarding its weight or
composition. The trial court incorrectly based its ruling on the
subjective feelings of the victim, rather than the objective nature of
the gun. The appellate court correctly concluded that the evidence
was insufficient to prove that the gun was a dangerous weapon, and
correctly directed the trial court to enter a judgment of conviction for
simple robbery and sentence the petitioner accordingly.
CONCLUSION
For the reasons that we have stated, we affirm the judgment of the
appellate court.
Affirmed.
-18-