By Katherine A. Grosh
Partner, Levin Ginsburg

In People v. Griffin, 2017 IL App (1st) 143800, the First District Appellate Court declined to reach the merits of a case that the court characterized as “but one of hundreds of criminal appeals involving fines-and-fees issues that were overlooked at the trial court level and raised for the first time on appeal.” Id. ¶ 5. In the case, the defendant pled guilty to two crimes in two separate cases and was sentenced to concurrent prison terms in both cases, with fines and fees. Id. ¶¶ 1-2. The defendant did not file either a motion to withdraw his plea or to reconsider his sentence, nor did he file a direct appeal in either case. Id. ¶ 2.

More than 30 days after sentencing in both cases, the defendant filed a pro se motion to correct the mittimus to reflect a different custody date for purposes of calculating presentence detention credit, which the trial court denied. Id. ¶ 1. He appealed the denial of his motion, abandoning his initial claim as to the custody date, and instead contending for the first time that his fines and fees were erroneously assessed against him and that he was entitled to presentencing detention credit. Id. ¶¶ 1, 4.

The appellate court found that, because the defendant failed to file a motion pursuant to Illinois Supreme Court Rule 604(d) (eff. Mar. 8, 2016) to withdraw his guilty plea and vacate the judgment or a motion to reconsider his sentence within 30 days of his sentencing, it could not consider his appeal on the merits. Id. ¶¶ 1, 11. The appellate court further found that the denial of his motion to correct the mittimus was not a final and appealable order over which it had jurisdiction because—unlike the sentencing orders—it did not determine the litigation on the merits. Id. ¶¶ 1, 13. Accordingly, the appellate court dismissed the appeal. Id. ¶¶ 1, 27.

The most noteworthy aspect of the opinion was the appellate court’s express recognition that the raising of fines-and-fees issues for the first time on appeal has become a “routine” issue in criminal appeals—one that “could easily be discovered and resolved at the trial court level with more diligent oversight by prosecutors and defense attorneys alike.” Id. ¶¶ 5-6. According to the court’s own Westlaw search, in 2016 alone, there were 137 appeals where a defendant challenged the imposition of fines and/or fees, and 83 cases in which a defendant asserted error in the application of per diem credit against his fines, “all for the first time on appeal.” Id. ¶ 5.

The court stated that “[t]he time has come to take a more serious look at this problem, both for the sake of preserving proper appellate jurisprudence and for the sake of judicial economy.” Id. ¶ 7. The court continued: “Copious amounts of time, effort, and ink are spent resolving these issues at the appellate level when many of them are more appropriately resolved at the trial level through (i) routine review of judgment orders after their entry—a task that would take at most minutes—and (ii) cooperation between the parties to correct any later-discovered errors by means of agreed orders.” Id. (citations omitted). The court “encourage[d] both the State’s Attorney and the public defender to review judgment orders upon entry to ensure that fines and fees are properly assessed,” and “further encourage[d] an open line of communication between the public defender’s office and the State’s Attorney’s office, so that when defense counsel discovers an obvious clerical error in the imposition of fines and fees, he or she can contact the State’s Attorney, and the error can be corrected expeditiously at the trial court level by means of an agreed order.” Id.

The court then went on to support its well-reasoned and amply supported determination of no jurisdiction with a historical discussion of the void judgment rule, abolished by the Illinois Supreme Court in People v. Castleberry, 2015 IL 116916, followed by a rejection of the plain error doctrine as a vehicle for appellate review due to its inapplicability to clerical mistakes. Id. ¶¶ 8-9. The court then outlined what it termed a “three-step analysis,” followed immediately by its determination that it need not proceed beyond step two because the defendant’s appeal from the trial court’s denial of the motion to correct the mittimus was not properly before the court due to the defendant’s failure to file the Rule 604(d) motion—“a condition precedent to any appeal from a judgment on a plea of guilty.” Id.¶¶ 10-11 (quoting People v. Flowers, 208 Ill. 2d 291, 300-01 (2003)).

After reciting the well-established rule that “a trial court retains jurisdiction to correct clerical errors or matters of form at any time after judgment [such as the inadvertent use of the wrong custody date, as Griffin claimed occurred in this case], so as to make the record conform to the actual judgment entered by the court” notwithstanding a lack of compliance with Rule 604(d), the appellate court clarified that “[t]hat jurisdiction, though, does not automatically extend to this court.”  Id. ¶ 12.  Stating, “it is axiomatic that not every denial of a motion gives rise to a right of appeal,” the court explained that the denial of the motion to correct the mittimus was not a final and appealable order because “there no longer was any pending litigation to resolve when that motion was filed” and the trial court merely affirmed the correctness of an existing judgment. Id. ¶¶ 13-15. The court also summarily rejected any application of the revestment doctrine, since: (i) a Rule 604(d) motion was never filed (id. ¶ 20, citing People v. Henderson, 395 Ill.App.3d 980 (2009)), and (ii) parties may not “revest” a reviewing court with jurisdiction over issues that were never raised in the trial court (id. ¶¶ 21-22).

Although it dismissed the defendant’s appeal, the appellate court noted that he was not left without recourse, noting that he could still petition the trial court for the relief that he seeks because “trial courts retain jurisdiction to correct nonsubstantial matters of inadvertence or mistake.” Id. ¶ 26. 

At a recent ceremony at the David S. Palmer Arena, Illinois Supreme Court Justice Garman was honored by having the county courthouse named in her honor—it will now be known as the Rita B. Garman Vermilion County Courthouse.

The Commercial-News reports the story.

At the ceremony, Justice Garman noted that early in her career opportunities “for a young woman lawyer were limited[.]” But she gained experience in both government and private practice. And eventually she became an associate judge, then an a circuit judge, then the presiding judge for Vermilion County. She was appointed to the Supreme Court in 2001 and served as the chief judge from 2013 to 2016. The Commercial-News reports that Justice Garman was the first chief justice to serve in every capacity in the state judiciary, and the first woman to hold each of those positions.

The article also reports that over 200 people, including local and state officials, attended the ceremony. Keynote speaker and former Illinois Governor Jim Edgar stated that 40 years ago, he never thought that the Vermilion County courthouse would be named for a judge who was a woman, but that, “How times have changed—and I must say, for the better.” Chief Justice Lloyd Karmeier—Justice Garman’s successor as chief justice—commended the Vermilion County Board and community for having the foresight to honor Justice Garman.

Justice Garman noted that that the ceremony and honor “have made me acutely aware that I am not an island. I am a piece of this community, just as every member of this audience is a piece of a larger whole.”

At a recent ceremony at the David S. Palmer Arena, Illinois Supreme Court Justice Garman was honored by having the county courthouse named in her honor—it will now be known as the Rita B. Garman Vermilion County Courthouse.

The Commercial-News reports the story.

At the ceremony, Justice Garman noted that early in her career opportunities “for a young woman lawyer were limited[.]” But she gained experience in both government and private practice. And eventually she became an associate judge, then an a circuit judge, then the presiding judge for Vermilion County. She was appointed to the Supreme Court in 2001 and served as the chief judge from 2013 to 2016. The Commercial-News reports that Justice Garman was the first chief justice to serve in every capacity in the state judiciary, and the first woman to hold each of those positions.

The article also reports that over 200 people, including local and state officials, attended the ceremony. Keynote speaker and former Illinois Governor Jim Edgar stated that 40 years ago, he never thought that the Vermilion County courthouse would be named for a judge who was a woman, but that, “How times have changed—and I must say, for the better.” Chief Justice Lloyd Karmeier—Justice Garman’s successor as chief justice—commended the Vermilion County Board and community for having the foresight to honor Justice Garman.

Justice Garman noted that that the ceremony and honor “have made me acutely aware that I am not an island. I am a piece of this community, just as every member of this audience is a piece of a larger whole.”

By Louis J. Manetti
Attorney, Codilis and Associates, PC

Chief Judge Wood recently issued a call to comply with a rule that requires parties to summarize jurisdiction. In Baez-Sanchez v. Sessions, Nos. 16-3784 and 17-1438, 2017 U.S. App. LEXIS 12306, at *1 (7th Cir. July 10, 2017), Chief Judge Wood released an opinion in two consolidated cases. Id. The chief judge expounds why the jurisdictional summary rule is important to the Court, explicitly reviews the rule’s requirements, and criticizes the widespread failure to follow all aspects of the rule. She states, “I am issuing this opinion in the hope that attorneys practicing in the Seventh Circuit, as well as our pro selitigants, will take heed and avoid these errors in the future.” Id. at *2.

The opinion explains that the Seventh Circuit screens all of its appeals to make sure that there are no jurisdictional problems—either in the district court or on appeal. Id. at *1-2. To screen cases, the Court relies on jurisdictional information that the parties supply. Id. at *2. The Court must have full and accurate jurisdictional statements because “for centuries it has been recognized that federal courts have an obligation—to assure themselves of their own jurisdiction.” Id. at *8 (quoting Kelly v. U.S., 29 F.3d 1107, 1113 (7th Cir. 1994)). Cases like Belleville Catering Co. v. Champaign Market Place, LLC, 350 F.3d 691, 693 (7th Cir. 2003) stress how seriously the Court takes jurisdiction. There, the appellee suggested that the Seventh Circuit should simply rule on the appeal’s merits—even though it was discovered that diversity jurisdiction was lacking—because it would establish finality, and surely the court had ruled despite jurisdiction in the past. Id. The Court emphasized that this statement “leaves us agog . . . . [t]he proposition that the Seventh Circuit has [ruled without jurisdiction] in the past—a proposition unsupported by any citation—accuses the court of dereliction combined with usurpation.” Id. The jurisdictional summary acts as a bulwark against these threats.

Federal Rule of Appellate Procedure 28, and its corresponding circuit rule unique to the Seventh Circuit, mandate what must be in a jurisdictional statement. Baez-Sanchez, 2017 U.S. App. LEXIS 12306, at *3. The appellant or petitioner must establish four things. First, appellants must show the basis for the district court’s jurisdiction. Id. at *3. This includes identifying the specific statute if federal question jurisdiction is involved, and showing the jurisdictional amount and citizenship—not residence—of each party if the case concerns diversity jurisdiction. Id. at *3-4. The opinion cautions that to articulate citizenship for an organization the litigant must work back through the ownership structure until either an individual human being or a formal corporation is identified. Id. at *7. Second, the jurisdictional statement must demonstrate the appellate court’s jurisdiction. Id. at *3. Third, it must articulate the dates showing that the appeal is timely—including the specific dates to show the judgment, any postjudgment motions and when they were resolved, and when the notice of appeal was filed. Id. at *3-4. Last, the statement must provide facts establishing the judgment’s finality or an exception to the final-judgment rule. Id. at *3.

The opinion then turns to appellees, who have their own “equally important” obligations under the rule. Id. at *6. The appellee must explicitly state whether the appellant’s jurisdictional summary is complete and correct. Id. Chief Judge Wood points out that “complete” and “correct” are not synonyms, and the appellee must verify that the appellant’s statement is both. Id. at *7. If it is not, the appellee must provide a complete jurisdictional summary. Id. at *6.

The opinion notes that “a distressing number of briefs filed in this court do not comply with the requirements” for jurisdictional statements. Id. at *2; see also The Practitioner’s Handbook for Appeals, at 134, located at http://www.ca7.uscourts.gov/forms/Handbook.pdf (reporting that the clerk’s office rejects about 10-15% of all submitted briefs because of rule violations). The appellees’ briefs submitted to the chief judge in the two consolidated cases illustrated this problem. In one case, the Attorney General of the United States’s brief reported that the petitioner’s “jurisdictional statement is correct.” Id. at *8-9. The statement was inadequate because it did not say anything about completeness. Id. at *9. The brief in the second case made “the mirror-image problem.” Id. That is, it declared that the appellant’s statement provided “a complete jurisdictional summary”—saying nothing about its correctness. Id. Hence, the Court struck both briefs and ordered the parties to file complying briefs within seven days. Id. at *10.

The chief judge’s frustration with the widespread failure to follow Appellate Procedure Rule 28 and its corresponding circuit rule was palpable. “There is no reason why, month after month, year after year, the court should encounter jurisdictional statements with such obvious flaws.” Id. at *9. For guidance, the opinion directs litigants to a jurisdictional checklist that the Court provides, http://www.ca7.uscourts.gov/forms/check.pdf, and the recently updated Practitioner’s Handbook for Appeals, http://www.ca7.uscourts.gov/forms/Handbook.pdf. Id. at *8. In closing, Chief Judge Wood expresses her hope that the opinion “will prevent the same problems from continuing to arise.” Baez-Sanchez, 2017 U.S. App. LEXIS 12306, at *10.

The Chicago Bar Association recently started a new initiative to help communities in Chicago suffering from pervasive gun violence. On November 3, 2017, from 9 a.m. to 12:30 p.m., the CBA will host “A Call To Action: Communities Suffering From Gun Violence Meet Lawyers Offering Help.”
 
At the meeting, 20 community representatives from various Chicago neighborhoods will meet with lawyers, seeking legal assistance in four specific areas: (1) mental health services; (2) police/community relationships; (3) faith-based community services; and (4) jobs for high-risk men and women.
 
During the meeting, community representatives will speak about the four areas of need. The lawyers in attendance will then have an opportunity to speak to these representatives to better understand their needs and determine how they can help meet those needs.
 
Planning meetings about the initiative will take place on Wednesday, August 23 and 30 at 12:00 p.m. at the Chicago Bar Association building.
 
If you are interested in volunteering your services, please e-mail Terry Murphy (tmurphy@chicagobar.org) and let him know the area you would like to volunteer with.

By Andrew Kwalwaser 
Law Clerk to Hon. Thomas E. Hoffman, Illinois Appellate Court, First District

In People v. Grigorov, 2017 IL App (1st) 143274, a panel of the First District of the Illinois Appellate Court granted a defendant's request for presentencing detention credit but found that it lacked jurisdiction over other claims that he raised for the first time on appeal.
 
In April 2014, the defendant, George Grigorov, pleaded guilty to aggravated driving under the influence of alcohol and driving on a revoked or suspended license. The circuit court sentenced him to concurrent prison terms of six and three years, respectively, with "all mandatory fines, fees, and court costs." He did not file a Rule 604(d) motion to reconsider his sentence or withdraw his plea, nor did he file a timely notice of appeal. In August 2014, however, he filed a petition pursuant to section 5-9-2 of the Unified Code of Corrections (730 ILCS 5/5-9-2 (West 2014)), requesting that the circuit court vacate $6,000 in imposed "assessments" due to his inability to pay. In September 2014, the circuit court denied the petition.
 
On appeal, the defendant abandoned his claim that his fines should be revoked due to his inability to pay and argued, for the first time, that (1) he should receive $975 in presentencing detention credit against his fines pursuant to section 110-14 of the Code of Criminal Procedure of 1963 (725 ILCS 5/110-14 (West 2012)), and (2) certain fines and fees were erroneously assessed.

As to his first claim of error, the appellate court granted the defendant presentencing detention credit. The court observed that, although the defendant's claims on appeal were "entirely new and unrelated" to his section 5-9-2 petition, section 110-14 of the Code of Criminal Procedure of 1963 allows the award of presentencing credit "merely 'upon application of the defendant.' " 725 ILCS 5/110-14 (West 2012). As the supreme court explained in People v. Caballero, 228 Ill. 2d 79, 88 (2008), a defendant can apply for credit "at any time and at any stage of court proceedings, even on appeal in a postconviction proceeding." Based upon this language, the court found that the interests of justice permitted the defendant to raise his claim for presentencing detention credit for the first time on appeal from the denial of his section 5-9-2 petition.
 
As to the defendant's contention that certain fines and fees were erroneously assessed, the court declined to reach the merits of his argument for several reasons. First, the court found that it lacked jurisdiction over his claims because they were not raised in the trial court and, moreover, section 5-9-2 of the Unified Code of Corrections "only deals with fines, not fees." Second, the court observed that the defendant did not file a Rule 604(d) motion, a necessary step for attacking fines and fees on appeal. Third, the court held that, in light of the abolition of the void judgment rule in People v. Castleberry, 2015 IL 116916, unauthorized fees are not void. In so holding, the court followed a line of decisions reaching the same conclusion and rejected the defendant's reliance on the only opinion that has held otherwise, People v. McCray, 2016 IL App (3d) 140554.

Fourth, the court found that the plain-error rule did not apply because the fees imposed against the defendant were not defects that affected his substantial rights, but rather were mathematical mistakes that did not implicate his right to a fair sentencing hearing. Finally, the court noted that judicial economy did not favor considering the defendant's arguments on the merits because "notions of judicial economy, by themselves, cannot create jurisdiction where it does not otherwise exist." The court observed that judicial economy is best served when fines and fees are resolved at the circuit court level, particularly in situations like the case at bar, where the defendant is indigent and the possibility of collecting against him does not justify the resources expended in litigating the matter on appeal. 

On Monday, September 11, United States Supreme Court Justice Ruth Bader Ginsburg will speak at the Auditorium Theatre in Chicago with United States Court of Appeals Judge Ann Claire Williams.

Justice Ginsburg, who has served on the Supreme Court since 1993, will discuss her life and judicial career. Judge Williams has served on the Seventh Circuit since 1999 and recently assumed senior status.

Individual tickets go on sale on July 28 at 10 a.m. and are $35 for the general public.

Please visit here for more information.

With the recent introduction of Illinois’ new appellate e-filing system, questions abound among participants, including lawyers, staff, and court staff. To foster a collegial forum in which all ALA members and nonmembers can openly discuss difficulties encountered and solutions discovered, the Appellate Lawyers Association is pleased to announce a new Facebook group, “Unofficial Illinois Appellate E-Filing Tips,” which can be accessed here.

While this group is not ALA-affiliated, our membership will benefit from the chance to ask questions and offer answers. The ALA encourages you to share this announcement with your colleagues and friends—all are welcome.

By Kimberly Glasford
Law Clerk to Hon. Terrence J. Lavin, Illinois Appellate Court, First District

Appellate practitioners who want to avoid sanctions under Illinois Supreme Court Rule 375 (eff. Feb. 1, 1994) should consult the First District’s decision in Oruta v. Biomat USA, Inc., 2017 IL App (1st) 152789, which provides a good example of what not to do. The decision also reminds practitioners of a potential resource for combating obnoxious litigants.

On January 14, 2013, the circuit court dismissed with prejudice plaintiff Oruta’s pro se claims against defendant Biomat USA, Inc. In September 2015, however, the plaintiff moved to file a service of summons against the defendant. The court denied that motion on September 29, 2015, noting that the court had dismissed the plaintiff’s claims against the defendant 32 months earlier. The plaintiff immediately filed a notice of appeal and filed an amended notice on May 20, 2016. Both notices of appeal, as well as the plaintiff’s appellate brief, stated that the circuit court entered a final judgment years earlier on January 23, 2012. That being said, the notice of appeal identified the 2015 order as the judgment being appealed.

The reviewing court found the plaintiff failed to demonstrate that the court had jurisdiction to entertain his appeal. If a final judgment was entered in 2012, the 2015 notice of appeal was filed well after the requisite 30-day filing period set forth by Illinois Supreme Court Rule 303(a) (eff. Jan. 1, 2015). Similarly, the plaintiff’s brief set forth no basis for the reviewing court to exercise jurisdiction over the 2013 order. Furthermore, the 2015 order was not appealable, as a final judgment was allegedly entered in 2012. Accordingly, the court agreed with the defendant’s sole contention that the appeal should be dismissed for lack of jurisdiction. Yet, the reviewing court found more was required.

Rule 375(b) authorizes a reviewing court to impose sanctions against a party or his attorney after determining that an appeal or other action is frivolous, not in good faith or primarily taken for an improper purpose. Ill. S. Ct. R. 375(b) (eff. Feb. 1, 1994). Additionally, the court can impose sanctions on its own motion. Id. An appeal is generally frivolous where not arguably warranted by law and not grounded in fact. Id. Moreover, harassment, the needless inflation of costs and unnecessary delay constitute improper purposes. Id.Sanctions are within the court’s discretion and may be imposed against pro se litigants under egregious circumstances. Oruta, 2017 IL App (1st) 152789, ¶ 11.

The reviewing court observed that the pro se plaintiff was a serial filer of frivolous appeals, having filed at least seven others, and had repeatedly crossed the line. In an opinion filed the year before, the court had described the plaintiff’s prior improper appeals “so that issues do not repeat themselves,” thereby suggesting that the plaintiff may suffer future consequences for repeating his mistakes. Oruta v. B.E.W., 2016 IL App (1st) 152735, ¶ 4. Clearly, the plaintiff did not learn his lesson. The reviewing court gave the plaintiff 30 days to show cause why sanctions should not be imposed. The court considered barring the plaintiff from further filings without prior leave of court. Justice Lampkin concurred only in the judgment.

While it remains to be seen whether the plaintiff will be sanctioned, unscrupulous lay persons and practitioners beware: appellate practice is no game.

Beginning July 1, both the Illinois Supreme and Appellate Courts will ONLY accept electronically filed notices of appeal, docketing statements and appearances from the parties’ attorneys.  Additionally, the reviewing courts will ONLY accept electronically filed records on appeal from the Clerk of the Circuit Court of Cook County.

In order to e-file with the reviewing courts, attorneys must register at the Illinois Courts’ website. There, attorneys can also find other resources about e-filing and instructions on how to e-file.

Also beginning July 1, the Clerk of the Circuit Court of Cook County will ONLY accept the submission of trial exhibits, reports of proceedings and supplemental records through its online portal. From this portal, the Clerk will transmit the pertinent records directly to Illinois Supreme and Appellate Courts.

The portal is available on the Clerk’s website along with additional resources and instructions.