You Lost Your Appeal. Is Your Case Really Over?

Petitions for Leave to Appeal to the Illinois Supreme Court

Losing an appeal is not necessarily the end of the road. In appropriate cases, there may still be an opportunity to ask the Illinois Supreme Court to review your case.

For a defendant who has already gone through a trial and an appeal, receiving an unfavorable decision from the Illinois Appellate Court can be devastating. It is easy to believe that there is nothing left to do.

That is not necessarily true.

In Illinois, a defendant who has lost an appeal may be able to file a Petition for Leave to Appeal (PLA) asking the Illinois Supreme Court to review the Appellate Court's decision.

Attorney Douglas H. Johnson represents clients in complex appellate and post-conviction matters, including petitions seeking discretionary review by the Illinois Supreme Court. He approaches a PLA not as a routine second appeal, but as a focused request for the Supreme Court to address an issue that warrants its attention.

The Illinois Supreme Court does not hear every case presented to it. Supreme Court review is discretionary, and only a relatively small percentage of petitions are accepted. But the fact that the Appellate Court ruled against you does not mean that your case is automatically finished.

The important question is whether your case presents an issue that warrants review by Illinois' highest court.

What Is a Petition for Leave to Appeal?

Illinois has a three-level court system for most criminal cases: the Circuit Court, the Illinois Appellate Court, and the Illinois Supreme Court.

After a criminal conviction, a defendant generally has the right to pursue a direct appeal to the Appellate Court. But what happens if the Appellate Court affirms the conviction?

A Petition for Leave to Appeal gives the defendant an opportunity to ask the Illinois Supreme Court to take the case.

Importantly, a PLA is not simply another appeal as of right. The Illinois Supreme Court has discretion to decide which cases it will review.

Under Illinois Supreme Court Rule 315, the Court considers factors including the general importance of the question presented, conflicts with decisions of the Supreme Court or another Appellate Court division, the need for the Court's supervisory authority, and the character of the judgment. The rule expressly makes the decision to grant leave a matter of judicial discretion.

That means the question is not simply: "Did the Appellate Court get my case wrong?"

The more important question is: "Why should the Illinois Supreme Court take this case?"

That distinction is critical.

Why Experience Matters at the PLA Stage

A Petition for Leave to Appeal is not simply a request asking the Illinois Supreme Court to reconsider everything that happened in your case.

The Supreme Court has discretion over which cases it will hear. As a result, preparing a PLA requires an attorney to look at the case differently than an attorney preparing an ordinary appeal.

The attorney must step back from the entire history of the case and identify the legal question that gives the Supreme Court a reason to intervene.

·         Carefully analyzing the Appellate Court's opinion;

·         Identifying errors in the court's reasoning;

·         Researching Illinois Supreme Court precedent;

·         Examining decisions from other appellate districts;

·         Determining whether there is a conflict or unsettled question of law;

·         Evaluating the broader consequences of the decision;

·         Determining which issue or issues deserve emphasis; and

·         Presenting those issues in a petition designed to persuade the Supreme Court to accept the case.

In other words, the goal is not simply to argue that the Appellate Court was wrong. The goal is to explain why the Illinois Supreme Court should care about the question presented.

That requires judgment and experience.

The Illinois Supreme Court Does Not Take Every Case

It is important to be realistic. Filing a Petition for Leave to Appeal does not mean that the Illinois Supreme Court will agree to hear your case. The Court receives many petitions and accepts only a fraction of them.

But that does not mean that filing a PLA is hopeless.

The Illinois Supreme Court exists, in part, to resolve important questions of Illinois law and to provide consistency in the decisions of the lower courts. A case that raises a significant legal issue can be worthy of Supreme Court review even when the defendant has already lost in the Appellate Court.

The Court publishes its dispositions of petitions for leave to appeal, allowing attorneys and the public to see which petitions are granted and denied.

The goal of a well-prepared PLA is therefore not simply to repeat the arguments that were made in the Appellate Court. It is to identify the most important legal issue in the case and explain why that issue deserves the attention of the Illinois Supreme Court.

What Types of Cases May Be Appropriate for Supreme Court Review?

Every case is different, and there is no formula guaranteeing that the Supreme Court will grant a PLA. Nevertheless, certain types of issues may be particularly appropriate for consideration.

1. Important Constitutional Questions

A case may warrant review when it presents a significant question under the United States Constitution or the Illinois Constitution.

2. Conflicts in Illinois Law

If different Illinois Appellate Court decisions have reached different conclusions concerning an important legal issue, Supreme Court review may be particularly appropriate.

3. An Important Question That Has Not Been Resolved

Sometimes a case presents a legal question that the Illinois Supreme Court has never squarely answered. A statute may be ambiguous, a constitutional issue may be unsettled, or a new technology or changing circumstance may create a question that did not previously exist.

4. An Appellate Court Decision That Appears Inconsistent With Established Law

A PLA may be appropriate when an Appellate Court decision appears to conflict with prior decisions of the Illinois Supreme Court or established principles of Illinois law.

5. Issues With Broad Consequences

A decision interpreting a criminal statute, sentencing provision, evidentiary rule, constitutional protection, or procedural requirement may affect many other cases.

Examples of constitutional issues can include ineffective assistance of counsel, the right to a fair trial, confrontation, search and seizure, due process, the right to present a defense, and significant evidentiary questions. Not every constitutional claim will justify Supreme Court review; the issue must still present a compelling reason for the Court to exercise its discretion.

Your Case Does Not Have to Be Famous

One misconception is that the Illinois Supreme Court only takes cases involving famous defendants or extraordinary circumstances. That is not the standard.

A case involving an ordinary criminal defendant can present an extraordinary legal question.

What matters is the issue presented and why the Supreme Court's guidance is needed. A defendant may have never received any media attention. The case may have been tried in a small Illinois county. Nevertheless, the case may raise an important question about Illinois criminal law that deserves consideration by the state's highest court.

The Deadline Is Critical

If you have just received an unfavorable decision from the Illinois Appellate Court, do not wait to determine whether you have another avenue of review.

Under current Illinois Supreme Court Rule 315, a petition generally must be filed within 35 days after entry of the Appellate Court's judgment. If a timely petition for rehearing is filed, the timing generally runs from the order disposing of the rehearing petition. Rule 315 contains additional provisions for Rule 23 orders and other circumstances.

The Supreme Court may extend the time only in limited circumstances, and motions to extend are not favored. This is one reason it is important to speak with an experienced appellate attorney promptly after receiving an unfavorable appellate decision.

Do not assume that you have months to decide what to do.

The Illinois Supreme Court has specific rules governing the timing, contents, filing, and service of petitions for leave to appeal. The Court provides statewide forms and instructions, but preparing a persuasive PLA involves much more than completing a form.

A PLA Requires a Different Kind of Appellate Advocacy

One of the most important things to understand is that a Petition for Leave to Appeal should not simply be a repetition of the appellate brief.

The Illinois Supreme Court is being asked to exercise its discretion to take the case. Consequently, the petition should identify the strongest reason that the Supreme Court should become involved.

That may require examining the Appellate Court's opinion carefully, researching decisions from other Illinois districts, examining Illinois Supreme Court precedent, analyzing statutory and constitutional questions, and determining whether the issue has consequences beyond the particular case.

In some cases, an attorney may conclude that the PLA should focus on one particularly important issue rather than presenting numerous issues.

The objective is to give the Supreme Court a compelling reason to say: "This is a case we should hear."

What Happens If the Illinois Supreme Court Grants the PLA?

If the Illinois Supreme Court grants the petition, the case proceeds before the Supreme Court. The parties then brief the issues presented, and the Supreme Court ultimately decides the legal questions before it. In appropriate cases, the Court may hear oral argument.

A successful PLA can therefore provide a defendant with another opportunity to challenge an adverse Appellate Court decision. But even after a PLA is granted, there is no guarantee that the defendant will ultimately win. The Supreme Court may affirm, reverse, or otherwise dispose of the Appellate Court's judgment.

The important point is that the Supreme Court has agreed to hear the case. That is a significant step.

What If the Supreme Court Denies the PLA?

A denial of a Petition for Leave to Appeal means that the Illinois Supreme Court has declined to review the case. It does not necessarily mean that the Appellate Court's decision was correct on every issue.

It does, however, generally mean that the direct appellate process has reached its end. Depending upon the circumstances, there may still be other potential forms of relief, including post-conviction proceedings, motions for relief from judgment, federal habeas corpus proceedings, or other remedies. Those remedies have their own requirements, deadlines, and limitations.

The appropriate next step depends upon the individual case.

A decision from the Illinois Appellate Court affirming a conviction can feel like the end of the road.

It may not be.

The Illinois Supreme Court does not take every case, and no attorney can honestly promise that a PLA will be granted. But an unfavorable Appellate Court decision does not automatically mean that there is no possibility of further review.

I handle Petitions for Leave to Appeal to the Illinois Supreme Court and other forms of further appellate review. My practice focuses on criminal appeals, post-conviction litigation, habeas corpus, and constitutional challenges. I also handle appellate matters in other jurisdictions, where terminology, deadlines, and procedures may differ.

If you have recently lost a criminal appeal, I can review the Appellate Court's decision and evaluate whether there is a legitimate basis for seeking further review.

There is no guarantee that the Supreme Court will accept any particular case. But before giving up, make sure you know whether your case presents an issue worth taking to the next level.

If you or a family member has recently received an unfavorable decision from an appellate court, contact my office promptly. The deadline may be closer than you think.

About Attorney Douglas H. Johnson

Douglas H. Johnson is an Illinois criminal defense and appellate attorney whose practice includes direct appeals, post-conviction litigation, petitions for leave to appeal, federal habeas corpus proceedings, and constitutional litigation. He represents clients in complex cases in Illinois and, where permitted, in other jurisdictions.

For a case-specific evaluation, contact the Law Offices of Douglas H. Johnson promptly after receiving an unfavorable appellate decision. Deadlines for further review can be short.