People v. Norton

48 N.E.3d 1098

The PEOPLE of the State of Illinois, Plaintiff–Appellee

v.Robert NORTON, Defendant–Appellant.

No. 2–13–0599.

Appellate Court of Illinois, Second District.

Feb. 19, 2015.

Rehearing Denied March 19, 2015.

Thomas A. Lilien and Jaime L. Montgomery, both of State Appellate Defender's Office, of Elgin, for appellant.

Joseph P. Bruscato, State's Attorney, of Rockford (Lawrence M. Bauer and Marshall M. Stevens, both of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

OPINION

Justice McLAREN delivered the judgment of the court, with opinion.

¶ 1 Defendant, Robert Norton, appeals, challenging the restitution order entered as part of the sentence imposed for his conviction of aggravated domestic battery (720 ILCS 5/12–3.3(a) (West 2010)). His appeal is untimely under the rule in People v. Serio, 357 Ill.App.3d 806, 294 Ill.Dec. 337, 830 N.E.2d 749 (2005). We therefore dismiss the appeal for want of jurisdiction.

¶ 2 I. BACKGROUND

¶ 3 Defendant, who had a bench trial, was convicted of two counts of aggravated domestic battery. His sentencing hearing took place on May 11, 2012. The court imposed a sentence of imprisonment and ordered defendant to pay $150,000 in restitution to the battery victim. Defense counsel filed a motion to reconsider the sentence, which the court heard and denied on June 29, 2012.

¶ 4 Immediately upon the court's denial of the motion to reconsider the sentence, defendant told the court that he wanted to raise a claim of ineffective assistance of counsel and asked the court how that would interact with his right to appeal. The court advised defendant that if he filed the motion he had with him, “the notice of appeal is not filed,” and after the court decided defendant's motion defendant could “decide what [he] want[ed] to do.” Defendant asked for further clarification, and the court told him, “[I]f you file it now, I will consider this as part of a motion for a new trial, and I'll deal with it here, right now before the appeal.” The State argued that the motion “should be” a postconviction petition, but the court stated, “It makes more sense for me to deal with it now rather than have it come back and me deal with it.” Defendant filed his motion, and the court appointed new counsel to represent him on his motion.

¶ 5 Defense counsel filed what he called a supplemental motion for a new trial, stating that it was his understanding that, under the trial court's interpretation, the time defendant had to appeal was not running during the pendency of the motion. The State asserted that the court had “advised [original defense counsel] not to file the [appeal] papers at [the] last court date so the Court would retain jurisdiction.” The court denied the motion at the conclusion of an evidentiary hearing that ended on May 3, 2013. Defendant filed a notice of appeal immediately upon the court's entry of the denial.

¶ 6 II. ANALYSIS

¶ 7 On appeal, defendant asserts that we have jurisdiction of this appeal under the rule we set out in Serio. We do not agree. Application of the rule in Serio results in this appeal's dismissal for untimeliness. Further, because defendant filed his notice of appeal beyond the period in which we may grant a motion for leave to file a late notice of appeal (see Ill. S.Ct. R. 606(c) (eff. Mar. 20, 2009)), we lack any other possible basis to take jurisdiction of the appeal. Cf. People v. Stanford, 2011 IL App (2d) 090420, ¶¶ 20–26, 352 Ill.Dec. 311, 953 N.E.2d 992 (we may deem the filing of a notice of appeal within the time for filing a late notice of appeal as equivalent to the filing of a motion for leave to file the late notice of appeal).

¶ 8 Under our holding in Serio, a pro se motion asserting the ineffectiveness of counsel that is filed fewer than 30 days after the court has decided a postsentencing motion does not extend the time in which a defendant may appeal. Serio, 357 Ill.App.3d at 817, 294 Ill.Dec. 337, 830 N.E.2d 749. To be sure, the trial court has both jurisdiction to consider such a motion and a duty to address the sufficiency of that motion. Serio, 357 Ill.App.3d at 816–17, 294 Ill.Dec. 337, 830 N.E.2d 749. Nevertheless, a successive postjudgment motion does not extend the time for appeal. Serio, 357 Ill.App.3d at 817, 294 Ill.Dec. 337, 830 N.E.2d 749.

¶ 9 The rule in Serio creates a conundrum for a defendant when, as here, the consideration of the pro se motion delays the notice of appeal more than 30 days after the denial of the first postjudgment motion. Here, the court did not assist defendant....