The opinion of the court was delivered by: Justice O'mara Frossard
Appeal from the Circuit Court of Cook County Honorable Frank DeBoni, Judge Presiding.
Defendant Phillip Rovito and co-defendant Nicholas Kuhn were charged with two counts of aggravated criminal sexual assault, two counts of attempted aggravated criminal sexual assault, and one count each of criminal sexual assault, aggravated kidnapping, kidnapping, and unlawful restraint. Following separate but simultaneous bench trials, defendant was convicted of criminal sexual assault and unlawful restraint. The trial court sentenced defendant to six years in prison for criminal sexual assault consecutive to a six-year sentence defendant previously received in an unrelated case for delivery of a controlled substance. Co-defendant Kuhn was convicted of attempted criminal sexual assault, criminal sexual assault, and unlawful restraint and was sentenced to prison for concurrent terms of eight and five years.
Defendant filed a petition for post-conviction relief, which the trial court dismissed after a full evidentiary hearing. On appeal, defendant contends that: (1) his petition should not have been dismissed because he established by a preponderance of the evidence that his trial attorney was ineffective for failing to file a notice of appeal, thereby precluding his direct appeal; (2) his sentence is unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000); and (3) the simultaneous, severed bench trials denied him his right to a fair trial.
Defendant's conviction arose from an incident on May 30, 1991, during which the 14-year-old victim was sexually assaulted by defendant and co-defendant in Franklin Park, Illinois. Defendant's trial commenced on September 11, 1997, and concluded on September 12, 1997. Trial counsel filed a motion for new trial and arrest of judgment on September 22, 1997. On October 17, 1997, the trial court denied defendant's motion for a new trial and arrest of judgment and imposed sentence.
In his post-conviction petition, which was prepared by retained counsel, defendant alleged that his trial counsel was ineffective for failing to file a notice of appeal. Defendant asserted in his affidavit that he had informed his trial lawyer that he wished to appeal and that his lawyer had advised and assured him that he "would take care of appealing [the] case." At the hearing on the petition, defendant testified that on October 17, 1997, just after he had been sentenced, he told his lawyer to file an appeal. According to defendant, his exact words were, "I'd like for appeal, by the way." Defendant testified that his lawyer said nothing in response.
Defendant's trial lawyer testified that on September 22, 1997, after defendant was found guilty, he and the defendant spoke about the possible range of sentences defendant might receive. He testified that he and defendant had discussed the possibility of an appeal on and off, but defendant was already serving a six-year sentence and opted not to appeal. Defense counsel further testified that defendant told him he did not want to appeal if he received a sentence of six years because six years was the sentence he would have received pursuant to a plea agreement that was discussed in a conference that took place during the previous year and was declined. Various family members and defendant's girlfriend testified during the hearing. They testified that defendant's trial lawyer told them he would handle defendant's appeal. Defendant's trial lawyer testified that he never told defendant or members of his family that he would file a notice of appeal on defendant's behalf.
The post-conviction court denied defendant's petition. The court determined that the defendant and witnesses did not provide reliable or credible evidence that defendant asked his trial lawyer to file a notice of appeal. The court concluded that defense counsel "was never requested to perfect the defendant's right to appeal the finding of guilty and sentence of this Court." The post-conviction court found that defendant's lawyer was not ineffective. Defendant's petition seeking to file late notice of appeal was denied.
The Post-Conviction Hearing Act (Act) allows a defendant to collaterally challenge his conviction or sentence for violations of federal or state constitutional rights. 725 ILCS 5/122-1 et seq. (West 1998); People v. Montgomery, 192 Ill. 2d 642, 653-54 (2000). The Act establishes a three-stage process for adjudicating a petition for post-conviction relief. 725 ILCS 5/122-1 et seq. (West 1998). At the first stage, the court is required to independently review the post-conviction petition within 90 days of its filing and determine whether "the petition is frivolous or is patently without merit." 725 ILCS 5/122-2.1(a)(2) (West 1998). Whether the petition and any accompanying documents make a substantial showing of a constitutional violation is a second-stage inquiry. People v. Edwards, 197 Ill. 2d 239, 245-46 (2001). If at the second stage a substantial showing of a constitutional violation is set forth, the petition is advanced to the third stage for an evidentiary hearing. 725 ILCS 5/122-6 (West 1998); People v. Gaultney, 174 Ill. 2d 410, 418 (1996).
This case was before the trial court at the third stage of the post-conviction process. Post-conviction relief at the third stage of the post-conviction process is justified only where a defendant demonstrates by a preponderance of the evidence that his conviction or sentence resulted from a substantial deprivation of federal or state constitutional rights. Montgomery, 192 Ill. 2d at 654. Dismissal of the petition by the post-conviction court following an evidentiary hearing on the petition will be reversed only if dismissal is manifestly erroneous. Montgomery, 192 Ill. 2d at 654; People v. Coleman, 183 Ill. 2d 366, 384-85 (1998).
The right to appeal a criminal conviction is fundamental and is guaranteed by the Illinois Constitution. Ill. Const. 1970, art. VI, § 6. Ineffective assistance of counsel based on the failure to file a notice of appeal can violate constitutional rights cognizable under the Act. People v. Perez, 115 Ill. App. 3d 446, 451 (1983). The due process clause of the fourteenth amendment guarantees a person convicted of a crime the effective assistance of counsel on the first appeal where the direct appeal, as here, is a matter of right. Evitts v. Lucey, 469 U.S. 387, 395-400, 83 L. Ed. 2d 821, 829-832, 105 S. Ct. 830, 836-38 (1985). "A system of appeal as of right is established precisely to assure that only those who are validly convicted have their freedom drastically curtailed. A State may not extinguish this right because another right of the appellant - the right to effective assistance of counsel - has been violated." Evitts, 469 U.S. at 399-400, 83 L. Ed. 2d at 832, 105 S. Ct. at 838.
A. Ineffective Assistance of Counsel
On appeal, defendant contends that his petition should not have been dismissed because he established by a preponderance of the evidence that his trial attorney was ineffective for failing to file a notice of appeal. Defendant argues that his trial lawyer was not credible at the evidentiary hearing on the petition and, therefore, the post-conviction court's findings were not supported by the evidence adduced at the hearing. In the alternative, defendant argues that even if his trial lawyer was credible, he performed in a professionally deficient manner because his lawyer's failure to file an appeal fell below an objective standard of reasonableness.
Strickland v. Washington holds that criminal defendants have a sixth amendment right to "reasonably effective" legal assistance. Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064 (1984). A defendant claiming ineffective assistance of counsel must show (1) that counsel's representation "fell below an objective standard of reasonableness," Strickland, 466 U.S. at 688, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064; and (2) that counsel's deficient performance prejudiced the defendant. Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068. The United States Supreme Court held in Roe v. Flores-Ortega that the Strickland "test applies to claims *** that counsel was constitutionally ineffective for failing to file a notice of appeal." Roe v. Flores-Ortega, 528 U.S. 470, 477, 145 L. Ed. 2d 985, 994, 120 S. Ct. 1029, 1034 (2000).
In Flores-Ortega, the defendant filed a federal habeas petition, alleging that his trial counsel was ineffective for failing to file a notice of appeal on his behalf after promising to do so. Flores-Ortega, 528 U.S. at 474, 145 L. Ed. 2d at 993, 120 S. Ct. at 1033. At the evidentiary hearing on the limited issue of whether the attorney promised to file a notice of appeal, the defendant testified that in a conversation after sentencing, counsel indicated she was going to file a notice of appeal. Flores-Ortega, 528 U.S. at 475, 145 L. Ed. 2d at 993, 120 S. Ct. at 1033. The attorney had "no specific recollection of that." Flores-Ortega, 528 U.S. at 475, 145 L. Ed. 2d at 993, 120 S. Ct. at 1033. The Court noted that under Strickland, "the performance inquiry must be whether counsel's assistance was reasonable considering all the circumstances." Flores-Ortega, 528 U.S. at 478, 145 L. Ed. 2d at 995, 120 S. Ct. at 1035, quoting Strickland, 466 U.S. at 688, 80 L. Ed. 2d at 694, 104 S. Ct. at 2065.
Regarding the performance prong of Strickland, the Supreme Court recognized in Flores-Ortega that a lawyer who disregards specific instructions from the defendant to file a notice of appeal acts in a manner that is professionally unreasonable, while a defendant who explicitly tells his attorney not to file an appeal cannot later complain that, by following his instructions, his counsel performed deficiently. Flores-Ortega, 528 U.S. at 477, 145 L. Ed. 2d at 995, 120 S. Ct. at 1035. The Supreme Court characterized the situation in Flores-Ortega as one where "the defendant has not clearly conveyed his wishes one way or the other." Flores-Ortega, 528 U.S. at 477, 145 L. Ed. 2d at 995, 120 S. Ct. at 1035. Regarding deficient performance for not filing a notice of appeal when the defendant has not clearly conveyed his wishes one way or the other, the Supreme Court stated as follows:
"In those cases where the defendant neither instructs counsel to file an appeal nor asks that an appeal not be taken, we believe the question whether counsel has performed deficiently by not filing a notice of appeal is best answered by first asking a separate, but antecedent, question: whether counsel in fact consulted with the defendant about an appeal. We employ the term `consult' to convey a specific meaning - advising the defendant about the advantages and disadvantages of taking an appeal, and making a reasonable effort to discover the defendant's wishes." Flores-Ortega, 528 U.S. at 478, 145 L. Ed. 2d at 995-96, 120 S. Ct. at 1035.
The Supreme Court further explained that if counsel has consulted with the defendant, then counsel performs in a professionally unreasonable manner only by failing to follow the defendant's express instructions with respect to an appeal. Flores-Ortega, 528 U.S. at 478, 145 L. Ed. 2d at 996, 120 S. Ct. at 1035. However, if counsel has not consulted with the defendant, the Supreme Court stated that the court must ask whether counsel's failure to consult with the defendant itself constitutes deficient performance. Flores-Ortega, 528 U.S. at 478, 145 L. Ed. 2d at 996, 120 S. Ct. at 1035. On the obligation to consult, the Supreme Court held:
"[C]counsel has a constitutionally imposed duty to consult with the defendant about an appeal when there is reason to think either (1) that a rational defendant would want to appeal (for example, because there are non-frivolous grounds for appeal), or (2) that this particular defendant reasonably demonstrated to counsel that he was interested in appealing. In making this determination, courts must take into account all the ...