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 elevatormaintenance, andEdwardGolden,

a maintenance employee for Abbott Laboratories with extensive
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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 (2003) (unpublished order under Supreme Court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 onwhatrelief 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 howpetitioners 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 PostConviction 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
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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.