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People v. Kellerman

September 04, 2003


Appeal from the Circuit Court of the 12th Judicial Circuit, Will County, Illinois No. 99-CF-870 Honorable Stephen D. White, Judge, Presiding.

The opinion of the court was delivered by: Justice Holdridge


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

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


The defendant was charged with committing arson. At his plea hearing, he proposed to plead guilty pursuant to a fully negotiated agreement with the State. The prosecutor stated that because the defendant previously had been convicted of two burglaries, he was eligible to be sentenced as a Class X offender. The defendant agreed to plead guilty in exchange for the State's recommendation of a 12-year prison sentence.

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

The trial judge accepted the defendant's plea under the terms of the agreement. During the sentencing hearing, the defendant's trial counsel stated that she had listened "to a tape where he made statements" to the police. The trial court sentenced the defendant to 12 years' imprisonment. The defendant did not pursue an appeal by filing the requisite postplea motion followed by an appeal from the disposition of such a motion. See 188 Ill. 2d R. 604(d).

The defendant filed a pro se post-conviction petition. The petition was accompanied by the defendant's own affidavit, but was not accompanied by supporting affidavits, records or other evidence. The defendant did not explain why he failed to supply any supporting documents or other evidence.

In his petition, the defendant alleged that his guilty plea was involuntary because of trial counsel's ineffective assistance. In his "Memorandum In Support" of his petition, he claimed that during his interrogation, the police told him "the State's Attorney was on a phone ready to offer [him] a negotiated plea of three or four years in exchange for a confession." He submitted that the tape of his confession would support this contention.

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

On August 2, 2001, the trial court dismissed the defendant's petition as "patently without merit and fail[ing] to raise a sufficient constitutional question upon which relief can be granted." On August 23, 2001, the defendant placed a pro se document in the prison mail system titled "Notice of Filing Notice of Appeal." In this document, he stated, "The Defendant wishes to file an Appeal of the Circuit courts [sic] Order of Dismissal August 2,2001 [sic] in which the Post-Conviction relief and cause was dismissed." The defendant's court-appointed appellate defender also filed a "Notice to Appeal" on behalf of the defendant on September 5, 2001.


I. Jurisdiction

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

The timely filing of a notice of appeal is necessary for an appellate 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 with the trial court within 30 days of a final order. 188 Ill. 2d R. 606(b). A notice of appeal mailed ...

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