                         Docket No. 104315.


                        IN THE
                   SUPREME COURT
                          OF
                 THE STATE OF ILLINOIS



THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v.
          EDWARD GOLDEN et al., Appellees.

                     Opinion filed June 5, 2008.



   JUSTICE FITZGERALD delivered the judgment of the court,
with opinion.
   Chief Justice Thomas and Justices Freeman, Kilbride, Garman,
Karmeier, and Burke concurred in the judgment and opinion.



                              OPINION

    The State appeals the decision of the appellate court affirming the
circuit court of Lake County’s order denying postconviction
petitioners Edward Golden and Sandra Haissig leave to file late
notices of appeal, but remanding the cause and authorizing the
petitioners to file successive petitions. For the reasons that follow, we
vacate the appellate court’s judgment and remand for further
proceedings.

                         BACKGROUND
    Sandra Haissig, an engineer manager for Abbott Laboratories
responsible for overseeing elevator maintenance, and Edward Golden,
a maintenance employee for Abbott Laboratories with extensive
elevator repair experience, formed a company called Elevator
Components, Inc. This company performed $300,000 of elevator
repair work for Abbott Laboratories, while Haissig and Golden still
worked there. Abbott Laboratories pressed theft charges, and Haissig
and Golden were convicted of theft over $100,000 and sentenced to
supervised probation and work release. They appealed, arguing only
that their convictions were improper as a matter of law because
Abbott Laboratories had not suffered any pecuniary loss. The
petitioners’ contentions were based, however, on transcripts missing
from the appellate record–namely, the trial judge’s rulings at the end
of the bench trial and on the posttrial motions. The appellate court,
accordingly, affirmed the convictions because it lacked a record to
evaluate these claims. People v. Haissig, Nos. 2–01–1410,
2–01–1411 cons. (2003) (unpublished order under Supreme Court
Rule 23).
    The petitioners filed postconviction petitions, arguing that
appellate counsel was ineffective for failing to file a complete record,
and asked the trial court to order the appellate court to allow them to
supplement the record and resubmit their briefs. They also made oral
motions for leave to file late notices of appeal. The State filed a
motion to dismiss the petitions, arguing that the petitioners had failed
to show they were prejudiced by appellate counsel’s performance, but
in the hearing on its motion, the State was concerned only with the
remedy that the trial court would fashion:
         “[F]rankly, we have looked, via the appellate prosecutor,
         looking all over the state for the exact phraseology or ruling
         that would be appropriate. We just can’t find one. I really
         don’t have a lot of guidance to try to help the Court on that
         because I just don’t know what kind of exact order would be
         fashioned. We would object to anything that orders the
         appellate court to hear the case because it will be up to the
         appellate court if they are going to hear the case.”
    The trial court denied the State’s motion and found that the
petitioners had received ineffective assistance of counsel.
Accordingly, the court granted the petitions, but denied the requested
relief because it had no authority to order the appellate court to act.
The trial court further decided that it could not allow the defendants
to file late notices of appeal because their original notices of appeal

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were timely. The defendants appealed, arguing only the propriety of
their convictions.
     The appellate court ordered the parties to submit supplemental
briefs on the issue of appellate jurisdiction because the trial court’s
order actually granted their postconviction petitions. The appellate
court held that it had jurisdiction: the petitions may have been
granted, but the requested relief was not. 369 Ill. App. 3d 639, 641-
42. The appellate court then addressed whether the trial court
correctly concluded that it could not allow the petitioners leave to file
late notices of appeal. The appellate court construed section 122–6 of
the Post-Conviction Hearing Act, which lists possible remedies if the
trial court finds in favor of a postconviction petitioner. Relying on
People v. Ferro, 195 Ill. App. 3d 282 (1990), and People v.
Hightower, 233 Ill. App. 3d 188 (1992), the court stated: “Section
122–6 mentions only trial proceedings as the subjects of the trial
court’s power. Appellate proceedings are nowhere mentioned.
Applying the maxim expressio unius est exclusio alterius, we hold
that section 122–6 does not authorize the trial court to allow a late
notice of appeal.” 369 Ill. App. 3d at 642-43. The appellate court
observed that this interpretation of section 122–6 was consistent with
Supreme Court Rule 606(c), which vests only the appellate court with
the power to allow the defendant to file a late notice of appeal. 369
Ill. App. 3d at 643. The appellate court added that its holding did not
leave defendants aggrieved by ineffective assistance of appellate
counsel without a remedy:
        “The defendant may bring a postconviction challenge arguing
        that his appellate counsel was ineffective under the
        performance-prejudice test of Strickland. In order to establish
        prejudice, the defendant generally must show that, but for the
        errors of appellate counsel, his appeal probably would have
        succeeded. *** If the trial court finds in favor of the
        defendant, it may grant him a new trial or simply vacate his
        conviction, depending on what relief the trial court determines
        would have been granted by the appellate court on the
        defendant’s direct appeal.” 369 Ill. App. 3d at 646-47.
The appellate court affirmed the trial court’s decision that the
defendants received ineffective assistance of appellate counsel, as
well as the trial court’s decision denying the requested relief, but

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remanded, contemplating and authorizing the petitioners to file
successive postconviction petitions that restate their ineffective
assistance claims, but request different relief. 369 Ill. App. 3d at 647.
We allowed the State’s petition for leave to appeal. 210 Ill. 2d R.
315(a).

                              ANALYSIS
     The State raises a single issue before this court: whether the
appellate court had jurisdiction to remand after it affirmed the trial
court’s order granting the petitions, but denying the requested relief.
According to the State, once the appellate court determined that the
trial court had ruled correctly, the appellate court’s jurisdiction ended
because there was no other appealable order.
     We agree with the State. The order that formed the basis of the
appellate court’s jurisdiction was the order granting the petitions, but
denying the requested relief–including leave to file late notices of
appeal. When the appellate court concluded that that order was
correct, there was nothing left to remand. The appellate court’s
instructions on how petitioners should proceed, though laudable, were
unnecessary and improper. The remand order was effectively an
exercise of supervisory authority the appellate court does not possess.
See People v. Whitfield, No. 102985 (December 13, 2007). Certainly,
the petitioners have every right to file whatever pleadings they
wish–e.g., successive postconviction petitions (see 725 ILCS
5/122–1(f) (West 2004)), petitions for relief from judgment under
section 2–1401 of the Code of Civil Procedure (see 735 ILCS
5/2–1401 (West 2004)), and habeas corpus petitions (see 735 ILCS
5/10–101 et seq. (West 2004)). They did not need an appellate court
order to allow them to do so.
     This conclusion, however, does not dispose of this case. The Post-
Conviction Hearing Act provides a procedural mechanism through
which a criminal defendant can assert that “in the proceedings which
resulted in his or her conviction there was a substantial denial of his
or her rights under the Constitution of the United States or of the
State of Illinois or both.” 725 ILCS 5/122–1(a)(1) (West 1998). Here,
the petitioners alleged that they received ineffective assistance of
appellate counsel when their attorney failed to file a complete record.


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    The familiar two-prong test of Strickland v. Washington, 466 U.S.
668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984), applies to claims of
ineffective assistance of appellate counsel. People v. Johnson, 206 Ill.
2d 348, 378 (2002). A petitioner must show that appellate counsel’s
performance fell below an objective standard of reasonableness and
that this substandard performance caused prejudice, i.e., there is a
reasonable probability that, but for appellate counsel’s errors, the
appeal would have been successful. People v. Titone, 151 Ill. 2d 19,
36 (1992). Because the petitioners’ appeals were perfected, prejudice
could not be presumed. See People v. Moore, 133 Ill. 2d 331, 339
(1990).
    In its ruling on the petitions, the trial court stated that appellate
counsel’s performance “did fall below the *** objective standard of
reasonableness.” The court then commented on prejudice:
             “Now, did his performance–Was it so deficient that it
        prejudiced the defendants? And the question then is the
        appeal was filed[;] however, the appellate court could not
        address the merits of the appeal because of the deficient
        performance in which the transcript of the ruling was not
        submitted. And the appellate court would not accept the
        supplementation of the record, and so therefore the Court
        finds that the second prong of the [Strickland] test has been
        met. And that the appellants were prejudiced. Therefore, the
        postconviction petition will be granted.”
    This ruling can be read in two ways. The trial court may have
decided that the petitioners were prejudiced by the mere fact that
appellate counsel did not file a complete record, preventing the
appellate court from reaching the merits of their appeals. This would
be a misapplication of Strickland. Alternately, the trial court may
have considered the complete record and decided that the petitioners
were prejudiced because there was a reasonable probability that if
appellate counsel would have filed that record, the appellate court
would have reached a different result in their appeals. This would be
a correct application of Strickland.
    Though “[w]e ordinarily presume that the trial judge knows and
follows the law unless the record indicates otherwise” (People v.
Gaultney, 174 Ill. 2d 410, 420 (1996)), the State does pepper its brief
with references to a lack of prejudice here. We conclude that the most

                                  -5-
appropriate result would be to remand this cause, directing the trial
court to properly apply Strickland.
    If the trial court decides that the petitioners did receive ineffective
assistance of appellate counsel, then it should fashion a proper
remedy. Because this case does not involve a failure to file a notice
of appeal (see People v. Ross, No. 103972 (June 5, 2008)), the relief
available to the petitioners would be that listed in section 122–6 of
the Post-Conviction Hearing Act (see Ferro, 195 Ill. App. 3d 282;
Hightower, 233 Ill. App. 3d 188). If the trial court finds that the
petitioners’ constitutional rights were deprived, it is the court’s
prerogative to remedy the denial of their constitutional rights. The Act
does not limit the trial court to the relief requested by the petitioners.
In the exercise of our supervisory authority, we vacate the appellate
court’s judgment and remand to the trial court so the court may
conduct a hearing on the petitioners’ ineffective assistance of
appellate counsel claims, consistent with this opinion.

                          CONCLUSION
    For the reasons that we have stated, we vacate and remand.

                                    Appellate court judgment vacated;
                                                      cause remanded.




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