Where a defendant is a fugitive during the filing of the appeal from their conviction and their counsel fails to prosecute the appeal leading to its dismissal, they cannot demonstrate ineffective assistance of counsel causing prejudice because the appellate court could have at any time dismissed the appeal under the fugitive dismissal rule.

The 1st District Appellate Court affirmed the decision of Cook County Circuit Judge Kenneth J. Wadas.

Hector Parada was arrested in 1998 for possession with intent to deliver after a kilogram of cocaine was recovered from a home he was believed to have lived in. Parada was released on bond after being admonished of the dangers of trial in absentia, and requested leave to travel to California to be with his daughter who was ill. He was again admonished and then granted permission. Parada was present for the trial, but did not return for the reading of the verdict and was found guilty in absentia. He did not appear for sentencing and was sentenced to 60 years in prison. In December 2000, Parada’s attorney filed notice of appeal, noting that Parada was a fugitive. The appeal was dismissed after eight months, with no docketing statement, record, or brief on file.

Parada was extradited to Illinois in October 2009. Two months later he moved to reinstate his appeal, but the court denied the motion. In September 2010, Parada filed a pro se post-conviction petition, alleging ineffective assistance of counsel for filing and then abandoning his appeal, noting that his attorney had agreed to provide both trial and appellate representation and that he never told his attorney to abandon the appeal. Parada argued that his counsel’s failure to avoid dismissal for want of prosecution fell below a reasonable standard of competence and prejudiced him. The circuit court dismissed the petition. Parada appealed.

On appeal, Parada cited precedent that prejudice may be presumed when defense counsel’s ineffectiveness renders the appellate proceedings nonexistent as it denies the defendant’s right to appeal. The appellate court acknowledged that this has been held to be true, but emphasized that in cases where a defendant is a fugitive at the time of his appeal, the appellate court may dismiss the appeal under the “fugitive dismissal rule” first established by the U.S. Supreme Court in 1876. The appellate court found that it was Parada’s status as a fugitive which led to the dismissal of his appeal, and his delay in returning to the jurisdiction and moving to reinstate his appeal is what the appellate court found had ultimately barred his appeal. Because of this, the appellate court found that Parada could not make the requisite showing that it was his counsel’s ineffective assistance which caused his appeal to be dismissed.

The appellate court therefore affirmed the decision of the trial court.

The People of the State of Illinois v. Hector Parada

2020 IL App (1st) 161987

Writing for the court: Justice Jesse Reyes

Concurring: Justices Robert E. Gordon and Eileen O’Neill Burke

Released: March 5, 2020