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People v. Terefenko

Court of Appeals of Illinois, Third District

July 24, 2014

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
JAROSLAW TEREFENKO, Defendant-Appellant

Modified Opinion Upon Denial of Rehearing September 12, 2014.

Appeal from the Circuit Court of the 12th Judicial Circuit, Will County, Illinois, Circuit No. 02-CF-1372. Honorable Sarah F. Jones, Judge, Presiding.

SYLLABUS

Where defendant pled guilty to burglary and attempted burglary in exchange for a sentence to TASC probation but was sentenced to 42 months' incarceration after violating his probation, and then he was released to Immigration and Customs Enforcement based on his immigration status and deported before the court held an evidentiary hearing on the postconviction petition he filed, which alleged that his counsel failed to advise him of the immigration consequences of his plea, and the petition was denied, his appeal from the denial of the petition was dismissed for lack of jurisdiction, since defendant knew of the postconviction proceedings that were going on when he was deported, his parents and his counsel appeared at the evidentiary hearing, a notice of appeal was filed late by the appointed appellate defender after a status hearing which was not attended by defendant or his postconviction counsel, and under the circumstances, defendant's lack of communication with the court as to his whereabouts was culpable negligence that amounted to abandoning the petition.

For APPELLANT: Kerry J. Bryson, State Appellate Defender's Office, Ottawa, IL.

James Glasgow, State's Attorney, of Joliet (Thomas D. Arado, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

JUSTICE SCHMIDT delivered the judgment of the court, with opinion. Justice McDade concurred in the judgment and opinion. Justice Carter dissented, with opinion.

OPINION

SCHMIDT, JUSTICE.

Page 551

[¶1] Defendant, Jaroslaw Terefenko, pled guilty to burglary (720 ILCS 5/19-1(a) (West 2002)) and attempted burglary (720 ILCS 5/8-4(a), 19-1(a) (West 2002)) in exchange for a sentence of four years of Treatment Alternatives for Safe Communities (TASC) probation. Defendant violated that probation and was eventually sentenced to 42 months' incarceration. Based on his immigration status, the circuit court ordered defendant released to the custody of Immigration and Customs Enforcement (ICE), which began deportation proceedings.

[¶2] While in the custody of ICE, defendant filed a petition for postconviction relief, arguing that his due process rights were violated where defense counsel failed to advise him of the immigration consequences of his plea. The circuit court granted the State's motion to dismiss the petition. We reversed that decision on appeal ( People v. Terefenko, 2011 IL App (3d) 100782-U) and remanded for a third-stage evidentiary hearing. By the time the evidentiary hearing occurred, on July 13, 2012, defendant had been deported to Poland and did not appear; however, new appointed counsel appeared and represented defendant. On August 20, 2012, the circuit court denied the petition.

[¶3] The court set a status hearing for 30 days after the entry of its judgment denying the petition. Neither defendant nor postconviction counsel appeared. The trial court continued the hearing to the next day, when it entered a written order extending the deadline for posttrial motions until October 4, 2012. On October 4, the court appointed the appellate defender, who filed a notice of appeal on October 5. We dismiss the appeal for lack of jurisdiction.

[¶4] FACTS

[¶5] In 2003, defendant, while represented by private counsel, pled guilty to two counts of burglary (720 ILCS 5/19-1(a) (West 2002)) and one count of attempted burglary (720 ILCS 5/8-4(a), 19-1(a) (West 2002)) in exchange for a sentence of four years' TASC probation. In 2007 the State filed a petition to revoke TASC probation, alleging that defendant had committed two new criminal offenses--driving under the influence and resisting a police officer. Defendant admitted the probation violation and entered into a one-year drug court contract. The State later filed a petition to remove defendant from drug court after he tested positive for cocaine. Defendant entered an admission to the petition to remove. He was sentenced to 42 months' incarceration.

[¶6] In 2009, defendant, represented by new private counsel, filed a motion to withdraw his plea of guilty to burglary and attempted burglary, alleging that he was never advised of the immigration consequences of his plea. The court found that it lacked jurisdiction to consider the late motion and ordered that defendant be released to the custody of ICE, which began deportation proceedings.

[¶7] Defendant, represented by the same counsel that represented him on the motion to withdraw, responded by filing a petition under the Post-Conviction Hearing Act (Act) (725 ICLS 5/122-1 et seq. (West 2010)), arguing that he was not admonished of the immigration consequences of his plea, in violation of the sixth amendment of the United States Constitution (U.S. Const., amend. VI), as outlined in

Page 552

Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010). After allowing defendant to amend his petition, the court granted the State's motion to dismiss. On appeal, we reversed that dismissal and remanded for a third-stage evidentiary hearing. Terefenko, 2011 IL App (3d) 100782-U. During the pendency of the appeal, defendant was deported to Poland.

[¶8] On remand, the trial court discussed with counsel how to proceed with the postconviction hearing in light of defendant's absence. Postconviction counsel investigated whether immigration officials would allow defendant into the country to attend the hearing. Counsel reported back to the court that it was impossible for defendant to be present for the evidentiary hearing. The State responded that defendant need not be present for the hearing. Postconviction counsel, the State, and the court agreed to hold the evidentiary proceedings in defendant's absence. A hearing was conducted on July 13, 2012. Defendant's parents testified at the hearing.

[¶9] On August 20, 2012, in open court, the court issued a written decision denying the petition. The court found that defense counsel's representation of defendant was neither deficient nor prejudicial. Postconviction counsel was present on behalf of defendant. The court asked counsel if he wanted to appeal. Counsel reserved appeal. The court scheduled a status hearing for September 19, 2012, for counsel to file an appeal, if desired. Postconviction counsel did not appear at that hearing, and the court continued the case to the following day, September 20, 2012.

[¶10] Postconviction counsel did not appear at the September 20 hearing. The court questioned the circuit clerk and the State about whether defendant had received proper notice of its decision to dismiss the petition, as required by Illinois Supreme Court Rule 651(b) (eff. Apr. 26, 2012):

" THE COURT: Bree [the clerk], in this file there's a certified mail receipt to [defendant] pursuant to [S]upreme [C]ourt [R]ule 651(b) indicating that date of my order and order was entered.
THE CLERK: Advised Mr. Terefenko he has a right to appeal and also if he couldn't afford a lawyer, one could be provided for him.
[THE STATE]: He is also though, Your Honor, the gentleman who I believe was deported to Poland.
THE COURT: Yes, and he's in Poland so I don't know if it is the habit of the appellate court to send ...

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