                               Illinois Official Reports

                                      Appellate Court



                         People v. Terefenko, 2014 IL App (3d) 120850



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


District & No.           Third District
                         Docket No. 3-12-0850

Rule 23 Order filed      July 24, 2014
Motion to publish
granted                  September 12, 2014
Modified opinion
filed upon denial of
rehearing                September 12, 2014

Held                       Where defendant pled guilty to burglary and attempted burglary in
(Note: This syllabus exchange for a sentence to TASC probation but was sentenced to 42
constitutes no part of the months’ incarceration after violating his probation, and then he was
opinion of the court but released to Immigration and Customs Enforcement based on his
has been prepared by the immigration status and deported before the court held an evidentiary
Reporter of Decisions hearing on the postconviction petition he filed, which alleged that his
for the convenience of counsel failed to advise him of the immigration consequences of his
the reader.)               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.

Decision Under           Appeal from the Circuit Court of Will County, No. 02-CF-1372; the
Review                   Hon. Sarah F. Jones, Judge, presiding.
     Judgment                Appeal dismissed.


     Counsel on              Kerry J. Bryson, of State Appellate Defender’s Office, of Ottawa, for
     Appeal                  appellant.

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


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

                                              OPINION

¶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

                                                  -2-
       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
       ILCS 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 Padilla v. Kentucky, 559 U.S. 356 (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 651B 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.



                                                   -3-
                  [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 such a notice. I don’t know.
                  [THE STATE]: I didn’t think that the clerk did when there was counsel.
                  THE COURT: How does that work?
                  THE CLERK: We are told just when it’s anything appealable.
                  THE COURT: I am going to hand this file to you. Take a look at that supreme court
              rule, and I know you may have matters next door. Come back. No problem. Can you do
              that for me?
                  [THE STATE]: Yes.
                  (Whereupon, the case was passed.)
                  THE COURT: [Defendant].
                  [THE STATE]: I did look into [R]ule 651B. It does not appear the notification
              applies to pro se defendants, and I found a case on Westlaw, although I lost it
              somewhere between the library and here, that, in fact, suggest[s] that when the
              defendant is not present on a post conviction matter even if he does have counsel, he is
              to receive the notification required under [Rule] 651B. That being said, since it’s a day
              past the 30 days, may I suggest in an exercise of caution and prudence to perhaps allow
              a late notice of appeal to be filed on behalf of [defendant] and perhaps appoint the
              public defender since it does appear his counsel–
                  THE COURT: Communicate with–have you communicated with [postconviction
              counsel]?
                  [THE STATE]: No, I have not.
                  THE COURT: Let’s do this. I was going to do the same thing to allow the extended
              time for any post decision plea, motion to reconsider or otherwise so I would extend
              that time, [assistant State’s Attorney], for two weeks for you to contact [postconviction
              counsel] to communicate with him in writing or by telephone indicating my ruling, and
              I will need a bit more as to that and to make our record perfectly clear and this will be
              on my calendar as to status that October 4th. How’s that?
                  [THE STATE]: Thank you.”
       The court entered a written order extending the deadline for posttrial motions until October 4,
       2012.
¶ 11       At a hearing on October 4, defendant’s postconviction counsel did not appear. The State
       informed the court that it had spoken to counsel, and counsel would not be filing any posttrial
       motions or a notice of appeal. The court stated:
                  “Okay. So here’s the–pursuant to Supreme Court Rule, the clerk sent to
              [defendant’s] last known address his rights of appeal. He has been deported to Poland.
              I don’t know if I am required to just go ahead and appoint the appellate defender?
              Because I don’t know what [defendant] wants to do. I am at a loss.”




                                                  -4-
       Defendant’s last known address was 35 Austrian Drive in Romeoville, Illinois.1 The court
       appointed the appellate defender to file a notice of appeal on defendant’s behalf. Notice of
       appeal was filed in the circuit court on October 5, 2012. The notice stated that the appeal was
       being taken from the court’s denial of defendant’s postconviction petition, which the notice
       alleged occurred on both September 21, 2010, and August 20, 2012.
¶ 12       Defendant appeals the circuit court’s denial of his petition for postconviction relief.

¶ 13                                             ANALYSIS
¶ 14       Our first task is to determine whether we have jurisdiction to consider this appeal. People v.
       Shaw, 2014 IL App (2d) 121105. The State argues that we lack jurisdiction to hear the present
       appeal because defendant’s notice of appeal was filed in the circuit court more than 30 days
       after final judgment was entered. Defendant argues that we have jurisdiction because the
       circuit court extended the 30-day deadline or, alternatively, that defendant’s late filing may be
       excused because the circuit court failed to notify defendant of his right to appeal under Illinois
       Supreme Court Rule 651(b) (eff. Apr. 26, 2012). We agree with the State.
¶ 15       Appeals from postconviction proceedings are governed by the criminal appeals rules, as
       near as possible. Ill. S. Ct. R. 651(d) (eff. Apr. 26, 2012). Illinois Supreme Court Rule 606(b)
       (eff. Mar. 20, 2009) requires:
               “[T]he notice of appeal must be filed with the clerk of the circuit court within 30 days
               after the entry of the final judgment appealed from or if a motion directed against the
               judgment is timely filed, within 30 days after the entry of the order disposing of the
               motion.”
       Generally, if no motion directed against the judgment is filed within 30 days, the trial court
       loses jurisdiction. People v. Bailey, 2012 IL App (2d) 110209, ¶ 12. The timely filing of a
       notice of appeal is required to vest the appellate court with jurisdiction. In re J.T., 221 Ill. 2d
       338, 346 (2006). In the present case, the final judgment denying defendant’s petition was
       entered on August 20, 2012. The deadline for filing a notice of appeal or postjudgment motion
       was September 19, 2012. No notice of appeal or postjudgment motion was filed by September
       19, 2012. The only postjudgment filing was defendant’s notice of appeal filed October 5, 2012.
¶ 16       Defendant argues that his October 5 notice of appeal was timely because the trial court
       extended the time for postjudgment filings. Defendant argues that on September 19, 2012, the
       circuit court extended the deadline for filing postjudgment motions until September 20, 2012.
       On that date, the court again extended the deadline until October 4, 2012, when it ordered the
       appellate defender to file a notice of appeal. Notice of appeal was eventually filed on October
       5, 2012.
¶ 17       The following is the entirety of the proceedings held on September 19, 2012:
                   “THE COURT: 02 CF 1372, People versus Jaroslaw Terefenko, J-a-r-o-s-l-a-w,
               T-e-r-e-f-e-n-k-o. This is 02 CF 1372. I will put it on the call tomorrow. I don’t know if
               counsel was going to file a notice of appeal in regards to my decision. [The assistant
               State’s Attorney] has been involved in it. So I will put it on tomorrow for that
               purpose.”

          1
            Defendant’s bail bond sheet from his arrest in 2002 is signed by defendant’s father, Orest
       Terefenko; on the sheet, Orest also lists his address as 35 Austrian Drive, Romeoville, Illinois.

                                                    -5-
       Defendant argues that those statements by the circuit court were sufficient to properly extend
       the 30-day deadline for filing postjudgment motions or a notice of appeal. We disagree.
¶ 18        The only case cited by defendant for the proposition that the circuit court may extend the
       deadline for filing postjudgment motions in a criminal proceeding or a proceeding under the
       Act is People v. Church, 334 Ill. App. 3d 607 (2002), which involved a defendant’s appeal
       from a guilty plea. The Church court held that “[a] trial court has the inherent authority, upon
       proper application and showing of good cause, to grant an extension of time for filing a motion
       to reconsider sentence or a motion to withdraw guilty plea.” Id. at 614.
¶ 19        Even assuming, arguendo, that the holding of Church applies to proceedings under the
       Act, the requirements of Church were not met in the present case. On September 19, 2012, the
       court was not faced with a proper application from defendant establishing good cause for
       granting an extension of time. Neither defendant nor counsel had made any application for an
       extension. The implication from the lack of any filings was that defendant did not wish to
       challenge the court’s denial of his petition.
¶ 20        Nor did the court’s language explicitly authorize an extension for filing a notice of appeal.
       The court stated, “I don’t know if counsel was going to file a notice of appeal in regards to my
       decision. [The assistant State’s Attorney] has been involved in it. So I will put it on tomorrow
       for that purpose.” Even if the court had the authority to extend the deadline, the language it
       used was not explicit enough to grant an extension.
¶ 21        In the alternative, defendant argues that this court retains jurisdiction, despite the late filing
       of the notice of appeal, because the circuit court failed to send defendant notice of his right to
       appeal, as required by Illinois Supreme Court Rule 651(b) (eff. Apr. 26, 2012). In the present
       case, the clerk sent notice under Rule 651(b) to defendant’s last known address in Romeoville,
       Illinois. Defendant, however, argues that sending notice to his last known address was
       insufficient here, where the court was aware that defendant had been deported to Poland and no
       longer resided at the Romeoville address. As a result of the failure to comply with Rule 651(b),
       defendant argues, this court must treat defendant’s untimely notice of appeal as a petition for
       leave to file a late notice of appeal and must also allow the filing of that late notice of appeal.
       See People v. Fikara, 345 Ill. App. 3d 144, 158 (2003). We conclude that the clerk complied
       with Rule 651(b); therefore, defendant’s argument fails.
¶ 22        Rule 651(b) requires that “[u]pon the entry of a judgment adverse to a petitioner in a
       post-conviction proceeding, the clerk of the trial court shall at once mail or deliver to the
       petitioner a notice” informing him that (1) the court has entered an order disposing of his
       petition, and (2) he has the right to appeal that decision. Ill. S. Ct. R. 651(b) (eff. Apr. 26,
       2012).
¶ 23        In the present case, the clerk “at once mail[ed]” notice to defendant containing the
       information required by Rule 651(b). That notice was mailed to the defendant’s last known
       address. As the initiator of these postconviction proceedings, defendant had a responsibility to
       shepherd–or at least pay attention to–the proceedings. It was defendant’s responsibility to
       inform the court of a new address in Poland, not the court’s to seek it out from roughly 4,500
       miles away. This case is distinguishable from Fikara, 345 Ill. App. 3d 144, where the clerk
       sent no notice under Rule 651(b). The court and clerk in the present case did as much as they
       could to notify defendant of his right to appeal. If defendant was interested in continuing to
       pursue the litigation he started, he was obliged to keep the court informed of his whereabouts.


                                                      -6-
¶ 24        Defendant was aware that his postconviction proceedings were ongoing at the time he was
       deported. Postconviction counsel appeared in court along with defendant’s parents, who
       apparently lived at the Romeoville address where notice was sent. If defendant was truly
       interested in the outcome of the proceedings, he could have contacted the court, his attorney, or
       his parents. In fact, he may have done just that–it is telling that defendant does not argue that he
       failed to receive actual notice of the court’s decision and his right to appeal. Here, any
       ignorance on the part of defendant was self-imposed.
¶ 25        The practical realities of the present situation reveal the insensibility of defendant’s
       argument. Defendant’s deportation presented the court and clerk with three options: (1) mail
       the Rule 651(b) notice to defendant’s last known address; (2) seek out a new address for
       defendant; or (3) hold open the proceedings indefinitely until defendant contacted the clerk
       with a new address. The second option is untenable: defendant, as the instigator of the present
       litigation, had the responsibility to inform the court of his location. And the third option flies in
       the face of the great importance we place on finality in our judicial system. Defendant gave the
       court no choice but to mail the notice to his last known address and bring some finality to these
       proceedings.
¶ 26        Illinois Supreme Court Rule 606(c) (eff. Mar. 20, 2009) allows for the filing of a late notice
       of appeal upon “reasonable excuse” or where the failure to file a timely notice of appeal was
       not the result of defendant’s “culpable negligence.” Here, defendant has no reasonable excuse
       for failing to keep the court informed of his whereabouts. His lack of communication with the
       court was culpable negligence. He should have kept the court informed; instead, he abandoned
       the litigation. He is not entitled to file a late notice of appeal.
¶ 27        Defendant was required to file a notice of appeal by September 19, 2012. Because he did
       not, the circuit court lost jurisdiction over the cause on that day, and the October 5 notice of
       appeal was a nullity. Without a timely filed notice of appeal, we lack jurisdiction to consider
       the present appeal.

¶ 28                                        CONCLUSION
¶ 29       For the foregoing reasons, we dismiss the appeal.

¶ 30       Appeal dismissed.

¶ 31        JUSTICE CARTER, dissenting.
¶ 32        I respectfully dissent from the majority’s decision to dismiss this appeal. I would hold that
       we have jurisdiction in this case and, upon consideration of the merits, that the circuit court
       properly denied the defendant’s postconviction petition.
¶ 33        I believe that under Church and the cases cited therein, we have jurisdiction to hear this
       appeal. As the majority states, in Church, the court held that “[a] trial court has the inherent
       authority, upon proper application and showing of good cause, to grant an extension of time for
       filing a motion to reconsider sentence or a motion to withdraw guilty plea.” Church, 334 Ill.
       App. 3d at 614. In this case, the circuit court continued the case for one day on September 19,
       2012, which was the date of expiration for filing a posttrial motion or a notice of appeal. The
       following day, the court ordered an extension of the time to file a posttrial motion to October 4,
       2012, on which date the court appointed the appellate defender. A notice of appeal was filed on

                                                     -7-
       October 5, 2012. While there was no formal “proper application and showing of good cause”
       (Church, 334 Ill. App. 3d at 614), the court was concerned about the defendant’s absence due
       to deportation and whether he received notice of the court’s judgment under Illinois Supreme
       Court Rule 651(b) (eff. Apr. 26, 2012), so the court extended the time within which the
       defendant could file a posttrial motion anyway. I believe that the court had the inherent
       authority to do so under Church. See Church, 334 Ill. App. 3d at 614. Under the circumstances
       of this case–given the extension, the continuances, and the deportation–I respectfully disagree
       with the majority that the defendant’s notice of appeal was untimely.
¶ 34        Because I would hold that we have jurisdiction, I would address the merits of the
       defendant’s argument that the circuit court erred when it denied his postconviction petition. In
       his amended postconviction petition, the defendant alleged that his attorney was ineffective for
       failing to give the defendant proper advice regarding the immigration consequences of
       pleading guilty. At the third-stage evidentiary hearing, the defendant’s father and mother both
       testified that they met with trial counsel, with the defendant present, and trial counsel told them
       that the defendant was “legal” and they had nothing to worry about in terms of immigration
       consequences. Trial counsel testified that when he met with the defendant and the defendant’s
       parents, they discussed the details of the case, which included that the defendant had confessed
       to the offenses and that the four individuals who were with the defendant at the time of the
       offenses all had implicated the defendant. Trial counsel told them that there would be a very
       small chance of prevailing if the case went to trial, so he discussed with them the possibility of
       probation under Treatment Alternatives for Safe Communities (TASC), which is the outcome
       trial counsel ultimately negotiated for the defendant.2 Trial counsel also testified that he did in
       fact discuss immigration consequences with the defendant and the defendant’s parents,
       although trial counsel could not recall specifically what he said. Trial counsel testified that “I
       would never tell any client facing any immigration issue that a felony conviction would not
       result in any kind of issue for his immigration status.” Further, trial counsel stated:
                    “What I believe I told [the defendant] is the same that I tell other clients that are
                facing immigration issues. And that is that I’m not an immigration attorney. I don’t
                know exactly what would happen as a result of the felony conviction.
                    However, I tell them that a felony conviction will have negative consequences for
                your immigration status, and if you want more information, you should talk to an
                immigration attorney.”
       In the circuit court’s order that denied the defendant’s petition, the court stated:
                    “[Trial counsel] indicated that the extent of his knowledge of immigration law is
                that a felony conviction could have a negative impact on one’s status in the US, and
                that an immigration lawyer should be consulted for more detailed advice. That advice
                was both correct and prudent. He testified that he had discussed with the Terefenkos the
                petitioner’s immigration status prior to the plea of guilty.”
       The import of this statement is that the court found trial counsel’s testimony to be more
       credible than the defendant’s parents’ testimony with regard to what was said at that meeting.


           2
           The circuit court noted in its decision that the defendant failed to complete his TASC probation,
       which would have resulted in the conviction being vacated. Subsequently, the defendant failed to
       complete “drug court,” which would have resulted in dismissal via nolle prosequi.

                                                     -8-
¶ 35        My review of the record in this case and the applicable law indicates that the circuit court’s
       denial of the defendant’s petition should be affirmed. First, I note that Padilla, 559 U.S. 356,
       does not apply retroactively. Chaidez v. United States, 568 U.S. ___, ___, 133 S. Ct. 1103,
       1113 (2013). Thus, the law in effect at the time of this case treated immigration consequences
       as collateral to a guilty plea. People v. Williams, 188 Ill. 2d 365, 372 (1999). Further, whether
       trial counsel’s assistance was objectively unreasonable, under the first prong of Strickland v.
       Washington, 466 U.S. 668, 687 (1984), with regard to the collateral consequence of
       immigration status depended on whether counsel failed to inform the defendant (People v.
       Huante, 143 Ill. 2d 61, 71-72 (1991)) or whether counsel gave the defendant erroneous advice
       (People v. Correa, 108 Ill. 2d 541, 553 (1985)). See People v. Manning, 227 Ill. 2d 403, 421
       (2008). Here, the question is the latter. The circuit court found trial counsel’s testimony to be
       more credible, and I find no basis in the record for us to disturb that finding. See People v.
       Ortiz, 385 Ill. App. 3d 1, 6 (2008) (holding that “[b]ecause the postconviction trial judge is in
       the best position to observe and weigh the credibility of witnesses testifying at an evidentiary
       hearing, his findings of fact will not be overturned unless those findings are manifestly
       erroneous”). Given, then, that trial counsel told the defendant and his parents that a felony
       conviction could have a negative impact on the defendant’s immigration status and that they
       should consult an immigration attorney if they wanted more information, I would hold under
       Correa and its progeny that trial counsel did not provide erroneous advice and therefore did not
       render ineffective assistance of counsel.
¶ 36        For the foregoing reasons, I respectfully dissent. I would hold that we have jurisdiction and
       that the case should be affirmed on the merits.




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