Appeal from the Circuit Court of Madison County. No. 93-CF-281 Honorable James Hackett, Judge, presiding.
The opinion of the court was delivered by: Justice Maag
The defendant, David Keller, appeals the dismissal of his post-conviction petition. The defendant filed a motion for reconsideration, and the circuit court denied the motion. The defendant filed a timely notice of appeal. We reverse and remand.
The relevant facts are as follows. A jury found the defendant guilty of first-degree murder and attempt (armed robbery) on September 24, 1993. On October 21, 1993, the circuit court extended the time for filing posttrial motions until a transcript of the trial had been prepared. The defendant was sentenced to 35 years' imprisonment for first-degree murder and 10 years' imprisonment for attempt (armed robbery). At the conclusion of the hearing, the circuit court informed the defendant of his right to appeal.
On March 24, 1994, the defendant filed a motion for the modification of his sentence. On June 9, 1994, the defendant filed a motion for a new trial. On June 17, 1994, the circuit court denied the defendant's motion for a new trial. On April 11, 1996, the circuit court modified the defendant's sentence for first-degree murder to 30 years' imprisonment. Throughout all of the foregoing proceedings, the defendant was represented by attorney Thomas Hildebrand. The defendant did not file a direct appeal to this court.
On July 23, 1999, the defendant filed a pro se petition for post-conviction relief. In the petition, the defendant alleged that at the sentencing hearing, he had told Hildebrand that he wanted to appeal. Hildebrand allegedly assured the defendant and his mother that Hildebrand would perfect the appeal. Many months later, the defendant asked his mother to contact Hildebrand because he had not heard from him. Hildebrand allegedly told the defendant's mother that he was working on the appeal and that the appeal would take three to four years. In the early part of 1999, the defendant's mother learned from the clerk of the court that Hildebrand had never filed a notice of appeal.
The circuit court appointed attorney John Delaney to represent the defendant in the post-conviction proceedings. Delaney then filed an amended petition for post-conviction relief. He reiterated the defendant's claim about Hildebrand not appealing his case. The State did not respond to the petition or move to dismiss it. The court held a hearing on the petition. The colloquy between the court and Delaney was as follows:
"THE COURT: *** [M]y understanding is *** that contingent upon
the Court reestablishing Mr. Keller's appellate rights in this
case, you are going to withdraw the postconviction petition and
amend the postconviction petition. Is that correct?
MR. DELANEY: Correct, Your Honor.
THE COURT: *** [I]n reviewing all of the court files and
transcripts, *** we probably don't have to reach the issues in your
postconviction petition because they will be cured by what I am
going to do here in a second; and that is, upon review of the
transcripts, it looks like while you were advised of your rights at
one time, you were not advised of your rights at the completion of
the proceedings. So, I am going to do that today and start your
thirty days for filing of the Notice of Appeal."
The court then ordered the clerk to file a notice of appeal for the defendant, and the clerk did so. The defendant then withdrew his post-conviction petition.
This court then dismissed the defendant's appeal because it was not timely filed. People v. Keller, No. 5-99-0818 (2001) (unpublished order under Supreme Court Rule 23 (166 Ill. 2d R. 23)). This court also stated that the circuit court cannot extend the time to file a notice of appeal pursuant to the Illinois Supreme Court rules. Additionally, this court rejected the defendant's argument that the appeal was from the granting of his post-conviction petition, because the defendant had withdrawn the post-conviction petition.
On July 10, 2001, the defendant, by attorney Curtis Blood, filed a motion for leave to file an amended post-conviction petition, and an amended post-conviction petition. Within the petition, the defendant alleged that Hildebrand had disregarded his directive to appeal the convictions and sentences. The defendant also alleged that the circuit court had failed to advise him of his right to appeal after he was resentenced. The State did not file an answer or a motion to dismiss the petition, and the cause proceeded to an evidentiary hearing.
At the hearing, the court stated that on July 12, 2001, it had granted the defendant's motion for leave to file an amended post-conviction petition. The defendant testified that he had told Hildebrand that he wanted to appeal the convictions and sentences. The defendant also talked about the direct appeal that this court denied: "The Court had granted me an appeal. *** My attorney *** advised me that *** once the judge grants you your right [to ...