People v. Thompson ( 2022 )

NOTICE 2022 IL App (4th) 220020-U FILED
This Order was filed under September 27, 2022
Supreme Court Rule 23 and is
NO. 4-22-0020 Carla Bender
not precedent except in the th
limited circumstances allowed 4 District Appellate
under Rule 23(e)(1). IN THE APPELLATE COURT Court, IL
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
Plaintiff-Appellee, ) Circuit Court of
v. ) Peoria County
JIMMY THOMPSON, ) No. 02CF638
Defendant-Appellant. )
) Honorable
) Katherine S. Gorman,
) Judge Presiding.
JUSTICE ZENOFF delivered the judgment of the court.
Presiding Justice Knecht and Justice DeArmond concurred in the judgment.
ORDER
¶1 Held: The appellate court dismissed the appeal for lack of jurisdiction where defendant
did not appeal from the entry of a final judgment or order.
¶2 Following a jury trial, Jimmy Thompson, acting pro se, was found guilty of armed
robbery (720 ILCS 5/18-2(a)(2) (West 2002)) and sentenced to 30 years’ imprisonment.
Defendant now appeals from the trial court’s order denying his request for second-stage
postconviction counsel and allowing him to withdraw his postconviction petition, arguing that
the trial court denied his statutory right to postconviction counsel by refusing to appoint counsel.
We dismiss this appeal for lack of jurisdiction.
¶3 I. BACKGROUND
¶4 In July 2002, the State charged defendant with armed robbery (720 ILCS
5/18-2(a)(2) (West 2002). The charge arose out of events occurring on July 6, 2002, in which
defendant stopped the victim on the street at 11:30 p.m., pulled out a gun, and told the victim,
“Give me the stuff,” leading the victim to hand defendant $300.
¶5 Prior to trial, defendant was represented by the public defender. In January 2003,
defendant moved to represent himself, alleging that counsel was not communicating with him or
taking actions that defendant desired in connection with the case. The trial court granted
defendant’s motion to represent himself.
¶6 Defendant’s trial commenced in January 2003. At the conclusion of trial, the jury
found defendant guilty of armed robbery. Prior to the sentencing hearing, defendant filed several
motions and letters in the trial court alleging, in relevant part, that he was “mentally unstable,”
that he heard and saw things that were not there, and that he was unable to represent himself. At
the sentencing hearing in March 2003, defendant informed the trial court that the presentence
investigation report did not include his pretrial mental health records from “Zeller Zone,” a
mental health facility. The trial court denied defendant’s posttrial motions and sentenced him to
30 years’ imprisonment.
¶7 Thereafter, at defendant’s request, the court appointed the public defender.
Defendant’s counsel filed an untimely motion to reconsider sentence on June 6, 2003. The trial
court considered the motion as if it were timely but ultimately denied it. Counsel filed a notice of
appeal on June 11, 2003. However, the Third District of the Illinois Appellate Court later
dismissed the appeal on counsel’s motion because defendant’s motion to reconsider sentence was
untimely, and the time for filing a motion to file a late notice of appeal had already expired.
¶8 In February 2005, defendant filed a pro se postconviction petition. Defendant
alleged, in part, that his counsel was ineffective for failing to perfect his right to a direct appeal.
Defendant also alleged that he was incompetent to waive his right to an attorney at trial because
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he was “mentally ill.” The trial court summarily dismissed the petition. However, the Third
District reversed and remanded for second-stage proceedings, holding that defendant’s claim that
counsel failed to perfect his appeal constituted a substantial constitutional violation. People v.
Thompson, No. 3-05-0205 (2007) (unpublished order under Illinois Supreme Court Rule 23).
¶9 On remand, the trial court appointed Kevin Lowe as defendant’s counsel. Lowe
informed the court that he wanted to obtain defendant’s mental health records to assess
defendant’s claim that he was mentally incompetent. In May 2008, the court subpoenaed
defendant’s “mental health records while he was a patient at Zeller-Zone in Peoria.” The court
reviewed the records in camera and gave them to the State “for further disclosure in discovery.”
¶ 10 In July 2008, while defendant’s 2005 postconviction petition remained pending,
Lowe filed a motion for leave to file a late notice of direct appeal, which was granted. On direct
appeal, the court affirmed defendant’s conviction and sentence. People v. Thompson, No.
3-08-0763 (2010) (unpublished order under Illinois Supreme Court Rule 23).
¶ 11 In April 2011, defendant filed a second pro se postconviction petition, which he
labeled as a “successive” postconviction petition. Defendant argued, inter alia, that he had a
“mental illness” and was “not suitable to waive his *** right to counsel [sic].” To support that
claim, defendant attached several posttrial mental health evaluations, which indicated that he had
been diagnosed with a psychotic disorder not otherwise specified, major depression, alcohol
abuse, and schizophrenia. The records also stated that he had been prescribed Prozac, Zyprexa,
Thorazine, and Fluoxetine. Defendant also argued that his postconviction counsel was ineffective
for failing to amend the 2005 postconviction petition. In July 2011, the trial court denied leave to
file a successive postconviction petition. The Third District reversed and remanded, holding that,
since the 2005 postconviction petition had not yet been addressed, the “successive” petition
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should have been viewed as an amendment to the 2005 petition. People v. Thompson, 2013 IL
App (3d) 110824-U, ¶ 19.
¶ 12 On remand, the trial court appointed new postconviction counsel, Kevin Sheets.
Sheets did not amend defendant’s postconviction petitions. In March 2014, Sheets filed a
certificate pursuant to Illinois Supreme Court Rule 651(c) (eff. July 1, 2017), indicating that he
had consulted with defendant to ascertain his contentions, examined the trial record, and made
any necessary amendments to defendant’s postconviction petitions. Sheets ultimately withdrew
due to a conflict. The court appointed a new assistant public defender, Samuel Snyder. Snyder
also did not amend defendant’s 2005 or 2011 postconviction petitions, and in July 2015, Snyder
filed a Rule 651(c) certificate.
¶ 13 On July 17, 2015, the State filed a motion to dismiss defendant’s postconviction
petitions, arguing that defendant’s claims were meritless, barred by res judicata, or forfeited. The
trial court granted the motion to dismiss. The Third District reversed and remanded for further
second-stage proceedings, concluding that postconviction counsel was obligated to obtain and
review defendant’s pretrial mental health records and amend the petitions as necessary. People v.
Thompson, 2016 IL App (3d) 150644, ¶ 30.
¶ 14 On remand, the trial court, in January 2017, noted that new postconviction
counsel needed to be appointed because Sheets was no longer employed by the public defender’s
office. In April 2017, Chandra Justice appeared for defendant, but in January 2018, the trial court
stated that Justice had been reassigned to other duties in the public defender’s office and would
no longer represent defendant. Assistant Public Defender Dennis Merkley was assigned to
represent defendant, but the court noted on May 10, 2019, that he had resigned. Thereafter,
Assistant Public Defender Maggi Wettstein was assigned to represent defendant.
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¶ 15 In March 2021, Wettstein filed a supplemental postconviction petition. The
supplemental postconviction petition “incorporate[d] by reference all of the arguments” in
defendant’s 2005 and 2011 postconviction petitions, including that he received ineffective
assistance of counsel and that his right to due process was violated because he was allowed to
represent himself at trial while mentally ill. Wettstein attached defendant’s pretrial mental health
records. Records from 1990 indicated, inter alia, that defendant had been diagnosed with
antisocial personality disorder, alcohol dependence, and adjustment disorder with depressed
mood. The records further stated that defendant had a “poor” “calculating ability,” was
impulsive, and exhibited suicidal gestures. Wettstein also filed a Rule 651(c) certificate.
¶ 16 At a hearing on September 3, 2021, Wettstein informed the trial court that
defendant had become “very displeased” with her representation. Wettstein explained that
defendant wanted to raise additional issues, which she did not believe were “on the table”
because there was “only one issue which the Appellate Court has sent back, which is the mental
health issue.” Wettstein explained that she “would need to withdraw as counsel” if defendant
was requesting the presentation of additional arguments.
¶ 17 On November 4, 2021, the State filed a supplemental motion to dismiss
defendant’s postconviction petition, alleging that defendant’s mental illness claim was meritless
because defendant did not allege that he was unfit at the time of trial.
¶ 18 On November 5, 2021, Wettstein moved to withdraw as counsel, noting that she
and defendant were “no longer seeing eye to eye.” Wettstein explained that she and defendant
“definitely conflict over where this case is going and over additional issues that [defendant]
wants raised.” Wettstein asserted that she was “not inclined, after having reviewed the file and
all of those other [appellate] opinions, to add any issues, and that is our conflict at this point.”
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The trial court allowed counsel to withdraw and informed defendant that he was “not going to be
reappointed counsel.” Defendant asked if he was “being denied counsel because [Wettstein]
wants to withdraw,” and the court responded, “That’s not the reason you are being denied
counsel.” The court set a hearing on the State’s motion to dismiss for December 10, 2021, and
informed defendant that if he wished to hire his own counsel, he could do so.
¶ 19 On December 10, 2021, defendant filed a pro se motion requesting new counsel.
At the hearing, the State reminded the court that defendant and Wettstein “had a falling out”
because, contrary to defendant’s wishes, Wettstein “did not want to add any” issues beyond the
“one specific [mental health] issue” that had been sent back by the appellate court. Defendant, in
turn, informed the court that, because Wettstein had “filed a motion on [his] behalf” but had
since withdrawn, he did not want to proceed on that motion. The court asked defendant, “So you
are asking to withdraw the supplemental petition for postconviction relief; is that right?”
Defendant answered, “From her, yes. And I’m asking for what I asked for on my motion up
there.” The court then ruled that, per defendant’s request, it would “allow [defendant] to
withdraw the supplemental petition for postconviction relief” but that it would deny his motion
for counsel because he was not “entitled to counsel at this time.” The court noted that “that
leaves nothing pending at this time” and that defendant would “get *** a copy of the order.”
¶ 20 Defendant’s notice of appeal indicates that he now appeals from a “Dismissal of
Post-Conviction Petition” dated December 10, 2021. The record on appeal contains no document
titled “Dismissal of Post-Conviction Petition,” but it does contain a document titled
“Post-Conviction Petition Order” that is dated December 10, 2021. That document provides,
“The Defendant’s motion for new attorney is Denied. The Defendant’s motion to withdraw the
supplemental petition is GRANTED.” This document is unsigned and is not file stamped.
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Additionally, the certified “case summary” in the record on appeal does not indicate that any
order or judgment was entered on December 10, 2021, or that a “Post-Conviction Petition Order”
or “Dismissal of Post-Conviction Petition” was ever entered.
¶ 21 II. ANALYSIS
¶ 22 Defendant argues that the trial court deprived him of his statutory right to
postconviction counsel by allowing his counsel to withdraw and refusing to appoint new counsel.
The State responds that we lack jurisdiction because defendant does not appeal from a final
judgment.
¶ 23 We have an independent duty to consider our jurisdiction and to dismiss an appeal
if jurisdiction is lacking. People v. Jenkins, 303 Ill. App. 3d 854, 856 (1999). Rule 651 allows an
appellate court to review an “appeal from a final judgment of the circuit court in any
postconviction proceeding.” Ill. S. Ct. R. 651(a) (eff. July 1, 2017). A “final judgment” is a
determination by the trial court on the issues presented by the pleadings that ascertains and fixes
the rights of the parties. People v. Shinaul, 2017 IL 120162, ¶ 10. Thus, a judgment or order is
“final and appealable if it determines the litigation on the merits such that the only thing
remaining is to proceed with execution of judgment.” Shinaul, 2017 IL 120162, ¶ 10.
¶ 24 Here, no order denied, dismissed, or otherwise ruled on the merits of defendant’s
postconviction petition. At the December 10, 2021, hearing, the trial court denied defendant’s
motion for the appointment of counsel and merely allowed defendant, per his request, to
withdraw his supplemental postconviction petition. Because the trial court made no
determination on the issues presented in defendant’s postconviction petition, nor did the court
determine the litigation on the merits, the trial court’s order was not final for purposes of appeal.
Shinaul, 2017 IL 120162, ¶ 10.
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¶ 25 Even if we could conclude that the trial court had determined the litigation on the
merits, we would nevertheless lack jurisdiction here. The Post-Conviction Hearing Act provides
that “[a]ny final judgment entered upon such petition shall be reviewed in a manner pursuant to
the rules of the Supreme Court.” 725 ILCS 5/122-7 (West 2020). Illinois Supreme Court Rule
272 (eff. Jan.1, 2018) provides, in part:
“If at the time of announcing final judgment the judge requires the submission of
a form of written judgment to be signed by the judge or if a circuit court rule
requires the prevailing party to submit a draft order, the clerk shall make a
notation to that effect and the judgment becomes final only when the signed
judgment is filed. If no such signed written judgment is to be filed, the judge or
clerk shall forthwith make a notation of judgment and enter the judgment of
record promptly, and the judgment is entered at the time it is entered of record.”.
A written judgment order is considered “entered” when it is entered of record. People v. Perez,
2014 IL 115927, ¶ 29.
¶ 26 Here, although defendant’s notice of appeal indicates that he is appealing from a
“Dismissal of Post-Conviction Petition” entered on December 10, 2021, no such document
appears in the record, and the certified “case summary” does not reflect that any such judgment
or order was ever entered. Similarly, although a document titled “Post-Conviction Petition
Order” does appear in the record on appeal indicating that defendant’s request for postconviction
counsel was denied and that his request to withdraw his postconviction petition was granted, that
document is unsigned, no file stamp appears on it, and the “case summary” includes no notation
that the document was ever entered. Because the record does not reflect that any final order or
judgment has been entered, this court is without jurisdiction, and this appeal must be dismissed.
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See People v. Durley, 203 Ill. App. 3d 731, 736 (1990) (dismissing appeal because, although
judicial driving permit order bore date on which judge signed it, there was no file stamp, and no
notation of judgment was entered of record).
¶ 27 III. CONCLUSION
¶ 28 For the reasons stated, we dismiss this appeal for lack of jurisdiction.
¶ 29 Appeal dismissed.
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