Docket No. 104315.



### IN THE SUPREME COURT OF THE STA TE OF IL LINOIS

THE PEOPLE OF THE STATE OF IL LI NOIS, Appellant, v. EDWARD GOLDEN et al. , Appelle es.

Opinion filed June 5, 2008.

JUSTICE FITZG ERALD delivered the judgment of the cou rt , with opinion. Chief Justice Thomas and Justices Fre eman , Kilbride, Garman, Karmeier, and Burke conc urred in the judgment and opinion.

OPINION

The State app eals the decision of the appellate court affirming the circuit court of Lake County ’s order deny ing postconvi cti on petitioners Edward Golden and Sandra Haissig lea ve to file la

te notices of appea l, but remanding the cause and authorizing the petitioners to file suc cessive petitions. For the reasons that follow, we vacate the appellate court’s judgment and remand f or further procee dings.

BACKGROUND Sandra Ha issig, an engineer manag er for Abbott Labora tories

r esponsibl e for overseeing elevat or maintenance, and Edward Golden
, a maintenance employ ee for Abbott Labora tories with extensive-2- elevator repair experience, formed a com pany ca

lled Elevator Component s, Inc. This company pe rfor med $300,000 of elevator repair work for Abbott Laborator ies, while Haissig and

Golden sti ll workedthere. A

bbott L aborato

ries pre ssed thef

t charg es, and H aissig and Golden were convicted of theft over $100,000 and sentenc ed to supervisedprobation and work releas e. They

appealed, arguing only that th eir convictions we

re improp er as a matter of law bec ause Abbott Labo ratorie s had not suffered any pecuniary

loss. The petitione rs’ contentions were based, however, on transcripts missing from th e a pp el la te re co rd –n am el y, the trial judge’s rulings at the end of the bench trial and on the po sttrial mot ions. The appella te court, accord in gl y, affirme d the conv

ictions be cause it

lacked a record to evaluat e these claims. People v . Haissig , Nos. 2–01–1410, 2–01–14 11 cons. (2003) (unpublished order under Supreme Court Rule 23). The petitioners filed postconviction petitions, arguing that appella te counsel was ineffective for failing to file a complete record, and asked the trial court to order the appellate cour tto allow them to supplement

the record and resubmit their briefs. They also made oral motions for leave to file late notice s of ap peal. The State filed a motion to dismiss the petitions, arguing that the petitioners had failed
to show they wer

e prejudic ed by

appella te counsel’s performance, but in the hearing on its motion, the State was concerned on l y with the remedy that the tr

ial court would fashion: “[F] ra nk ly, we have looked, via the appellate prosecutor, looking a ll over the state for the exact phraseology or ruling that would be appropr

iate. We ju st can’t f

ind one. I really don ’t have a lo t of guid ance to t ry to help the

Court on tha t because I just don’t know what kind of exact order would be fashioned. We would obj e ct to anything tha t orders the appella te court to hear the case because it will be up to the appellate court if they

are going to hear the c ase.” The trial cou

rt denie d the State ’s motio n and found that the petitioners had rec eiv e d ineffective as sistance of counse

l. Ac co rd in gl y, the court granted the petitions, but denied the requested reli ef because it had no a

uthority to order the appe llate cou rt to act. The trial court further decided that it could not allowthe defe ndants
to file late

notices o f appea

l becaus e their

original notices of appeal-3- were timely . The def

endants a ppealed , argu

ing only the propriety of their co nvictions

. The appellate court ordered the par ties t o submit supplemental briefs on the i ssue of

appellate jurisdiction because the trial court’s order actually g

ranted their postconv ictio n petitions . The app ellate
court he ld th at it ha d j ur is di ct io n: th e p et it io ns ma y have be en granted, but the requested relief was not. 369 Ill. App. 3d 639, 641- 42. T he a ppellate court then addressed whether the tria l court

correctly concluded that it co

uldnot allow the petiti oners le ave to fi le latenotices 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 favo

r of a pos tconvict

ion petitio ner. Rely

in g o n Peoplev. Ferro , 195 Ill. App. 3d 2 82 (1990), and People v. Hightower
, 233 I

ll. App. 3d

188 (1992 ), the court state d: “S ection 122–6 mentions o nly

trial pro ceeding s as the subjects of the trial court’s power. A

ppellate procee din gs are nowhere mentioned. Applying t he ma xi m expressio unius est exclusio alterius , we hold that section 1 22–6 does not author ize the tri al court

to allow a

late notice of appeal.” 369 Ill. App. 3d a t 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 appella te court wit

h the p ower to allow the defendant to file a late notice of a ppeal. 369 Ill. App. 3d at

643. The appellate court added that its holding did not leave defendants aggrieved by ineffective assistance of a ppellate

co un se l w it ho ut a r em ed y: “The defendant may

bring a postconviction challenge ar guing that his appellate counsel was ineffective un der th e performance-prejudice

test of Strickland . In order to

establish prejudice, the defe

ndant g enerally mu st

show that, but for the

erro rs o f appellate counsel, his appeal probably would have succeeded. *** If the trial cou r t finds in favor of the defenda nt, it ma y g rant him a new t rial or simply

vacate his conviction, depen ding on what re lief the trial court determines would have be en gra

nte d by the appellate

court on the defendant’s direct appeal.” 369 I ll. App. 3d at 646-47. The appella

te court affirme d the tria

l court’sdecision

th at t he defenda nts re ceive d ineffective assistance of appellate c ounsel, as well as the trial court’s decision denyin g the requested relief, but-4- remanded, contempl ating a nd author

izing the petitione

rs to file

su cc essive postconviction petitions that restate their ineffective assistance claims, but request different relief. 369 Ill. App. 3d at

647. We allow ed the Sta

te’s peti tion for le ave to ap

peal. 210 Ill. 2 d R. 315(a).

ANA LYSIS The State ra

ises a sing

le issue b efore t

his court : w h ether the appella te court had jurisdiction to remand after it affirm ed t he trial court’s order granting the petitions, but denying the requested relief. According to the State, once the appellate court determined that the trial co ur t h ad ru le d c or re ct ly, the appellate court’s jurisdiction ended because there was no other appe alable order.
We agree with the State. The order tha t fo rmed t he basis of the appella te court’s jurisdiction was the order granting the petitions, but denying the requested relief–including leave t o fi le late notices of appeal. When the appellate court concluded that that order was

correc t, there was nothing left to remand. The appellate cour t’s instructions on how p etitioners should proceed, though laudable, wer e unnecessary

and i mproper. The remand order was ef fectively a

n exercise of supervisory

authority the

appella te court does not po ssess. See People v . Whit

field , No. 102985 (D ec em be r 1 3, 20 07 ). Ce rt ai nl y, the petitioners have ev ery rig ht to file whatever pleadings they wish– e.g. , success ive postc onviction petitions ( see 725 I

LCS 5/122–1(f) (West 2004)), petitions for relief from j udgment under section 2–1401 of

the Code o f Civil Proc edure ( see 735 I LCS 5/2–1401 (West 2004)), and habeas c orpus petitions ( see 735 I LCS 5/10–101 et seq. (West

2004)). They did not

need an appellate court order to allow them to do so. This conclusi on, howev er, doesnot dispose of this ca se. The Po stConviction Hearing

Act pr ovid es a pro cedura l mech anism throu gh which a crimina

l defend ant can a ssert tha

t “inthe pr oceedi ngs which resulted in his orher

convicti on there

was a sub stantial d

enial of his

or her rights under the Constitution of t he Uni ted States or of the Stateof Illinois or

both.” 725 IL

CS 5/122–1(a)(1) (West 1998). Here, the petitioners alleged that they received ineffe c tive assistance of appella te counsel when their attorney failed to file a co mplete

record.-5- The familiar two-prong test of Strickland v. W ash in gton , 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
t hat this substandard performance caused pre judice, i.e. , there is a

reasona ble probabil

ity t hat, but f or appellatecounse l’s errors, the appeal would have been successful. Peoplev. Titone , 151 Ill. 2d 19, 36 (1992). B ecause

the petitioners’ appeals were perfec ted, 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 appel lat e counsel’s performance

“did fall below the *** objective standard of reasonableness.” The court then commented on pr ejudice: “Now, did his performanc e–Was i t so defic ient that it prejudiced

the defend a nts? And the question then is the appeal was f

iled[ ;] h oweve r, the appellate court could not addressthe merits of the appeal because of the defi cient performance

in which th

e transc ript of the

rulin g was no t submit ted. And the a

ppellate court would not ac cept t h e supplementation of the record, and so therefore the Cour t finds that the se

cond prong of the [ Strickland ] test has been met. And that the appellants were prejudiced. Theref ore, the postconviction petition will be granted.” This ruling can be read in two wa ys . The trial court may

have decid ed that the petitioners were prejudiced by the mere fact that appella te counsel di d no t file a complete record, preventing the appella te court from rea ching th e merits o f their a

ppeals. T his would be a mi sa pplication of Strickland . Alternately, the tr ial court may have considered the complete record and decided that the petitioners

were prejudiced because there was a reasonable probability

tha t i f appella te counsel would ha v e filed that record, the appellate court would have reache d a diffe

rent re sult 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 I

ll. 2d 410, 4 20 (1996) ), the Sta te does pepper its brief withreferences to a lack of pr ejudice here. We

conclude that the mo st-6- appropr iateresult would be to remand this cause, direc ting the trial

co ur t t o p ro pe rl y ap pl y Strickland

. If the trial court

decides that the petitioners did receive ineffective assistance of appellate counsel, then it should fashion a proper remed y. Becau se this ca se does not involve a failure to file a n oti c e of appeal (see People v . Ross , No. 103972 (June 5, 2008)), the relief availab le to the petitioner s wou ld 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). I f the trial court finds that the petitione rs’ constitutional rights were deprived, it is the court’s prerogative

t o reme dy the denial of their constitutional rights. The Act does not limit the trial court to the relief requested by the petitione

rs. In the exercise of

our supervisory a

uthority, we vaca

te the appella

te court’s judgment and remand to the trial court so the court may conduct a hearing on the p e titioners’ ineffective assistance of appellate counsel claims, consistent with this opinion.

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

Appellate court judgment vacated;

cause remanded.