People v. Ashley
| Decision Date | 24 March 1966 |
| Docket Number | No. 39278,39278 |
| Citation | 216 N.E.2d 126,34 Ill.2d 402 |
| Parties | The PEOPLE of the State of Illinois, Appellee, v. John ASHLEY, Appellant. |
| Court | Illinois Supreme Court |
Michael G. Kadens, Chicago, appointed by the court, for appellant.
William G. Clark, Atty. Gen., Springfield, and Daniel P. Ward, State's Atty., Chicago (Fred G. Leach, Asst. Atty. Gen., and Elmer C. Kissane and Stuart P. Shapiro, Asst. State's Attys., of counsel), for appellee.
Petitioner was convicted of armed robbery after a jury trial in the circuit court of Cook County and sentenced to imprisonment for a term of 15 years to life. This court, on writ of error, affirmed the conviction (People v. Ashley, 18 Ill.2d 272, 164 N.E.2d 70), and Certiorari was denied by the United States Supreme Court. Ashley v. Illinois, 363 U.S. 815, 80 S.Ct. 1255, 4 L.Ed.2d 1157.
The cause is now before us for review of proceedings upon a post-conviction petition. It is contended that error was committed in that: (1) the petitioner's request for counsel other than the public defender in the post-conviction proceedings should have been allowed since petitioner was there seeking to challenge the adequacy of his representation by the public defender in the original trial; (2) the representation of petitioner by the public defender in the post-conviction proceedings was so incompetent and inadequate as to deprive petitioner of due process; (3) the court should have ordered petitioner's return from the penitentiary so that he might be present in person at the hearing upon his petition; (4) the original trial errors set forth in his petition, including his alleged absence from the courtroom when the jury returned its verdict, are not Res judicata.
Adequate appraisal of the merits of petitioner's argument can be made only in the context of the entire history of the post-conviction proceedings. However, a description of those proceedings as detailed as might be desirable would extend this opinion beyond reasonable limits. As shortly stated as adequacy permits, the record before us indicates the following: Defendant's conviction was affirmed by this court on January 22, 1960, and Certiorari denied by the United States Supreme Court on June 6. On June 23, defendant filed a verified Pro se petition under the Post-Conviction Hearing Act (Ill.Rev.Stat.1959, chap. 38, pars. 826--832) including much argument as to the correctness of the evidentiary and procedural rulings in the trial court and requesting appointment of counsel other than the public defender since one of the allegations of the petition was that he had been incompetently represented by the public defender in his initial trial. On July 7, the public defender was appointed counsel, and the case assigned to Judge Ashcraft. Judge Ashcraft had served as the original trial judge following allowance of petitioner's motion for a change of venue from the judge to whom the case had originally been assigned. Upon receiving notice (July 27) of this action petitioner apparently wrote Judge Ashcraft and Judge Austin requesting non-public defender counsel and assignment of the post-conviction proceedings to another judge since petitioner was alleging Judge Ashcraft had been prejudiced against him during the trial. On October 21, Judge Ashcraft wrote petitioner indicating his request for other counsel had been allowed and naming the attorney appointed to represent defendant. Thereafter appear copies of two letters from petitioner to his attorney indicating that the attorney had visited petitioner at the penitentiary, and that petitioner was attempting to ascertain what investigation counsel had made as to information given him by petitioner. The last letter, dated July 30, 1961, asked that counsel withdraw since he had not answered petitioner's letters and petitioner felt he had no interest in the case. August 2 petitioner wrote the court requesting other counsel in view of his appointed attorney's apparent failure to act. August 16, petitioner's counsel wrote him, returning to him the trial transcript, disagreeing with petitioner's views respecting counsel's apathy, and indicating his intention to withdraw.
While the record is unclear as to specific times, it is apparent that other counsel (experienced and capable in criminal matters) was appointed to represent defendant. A filed appearance is dated November 2, 1961. As a result of Judge Ashcraft's death, the case was reassigned. It is apparent from other letters that new counsel also conferred with petitioner at the penitentiary and that petitioner subsequently, apparently in November, 1962, wrote Chief Judge Boyle concerning the lack of action by appointed counsel, and that the chief judge turned over this letter to petitioner's counsel for attention. On December 6, 1962, an amended post-conviction petition, dated June 1, 1962, signed by petitioner, and prepared by his counsel, was filed reasserting in modified form the major allegations of the original petition and adding a contention that perjured testimony had been employed by the State during the trial of defendant. The People moved to dismiss the amended petition, maintaining that no constitutional questions were raised thereby and that in any event petitioner was precluded from questioning all matters which were raised or might have been raised on his original writ of error.
On March 7, 1963, Chief Judge Boyle continued the hearing on the amended petition to April 30, 1963, and ordered that defendant be brought to the Cook County jail in anticipation of the hearing. Treating this order as a denial of the motion to dismiss, the People answered the amended petition, reasserting the allegations of the motion to dismiss and additionally denying the allegations in the amended petition.
During this period numerous Pro se pleadings were apparently filed with the circuit court of Cook County including an application for a writ of Habeas corpus ad testificandum, and Subpoena duces tecum, and a petition for a writ of Mandamus. Also filed in this court were two motions for leave to file petitions for writs of Mandamus which we denied.
May 7, 1963, petitioner and his appointed counsel appeared before Chief Judge Boyle. At that hearing petitioner's counsel stated that he had some further investigation to do, including a list of 31 names to check, but that he would be ready in two weeks. He also indicated petitioner would prefer someone else to represent him, but that counsel would remain and 'do his best' unless petitioner wanted him replaced. Petitioner was then sworn and questioned by the judge as to his desires. While petitioner's replies were somewhat equivocal, it is clear that he felt counsel 'hasn't taken any action in my case', and when asked if he wished counsel to withdraw he replied that he wanted the court to 'do something'. Counsel then indicated he felt he should withdraw, the court allowed him to do so, and stated its intention to appoint the public defender. Petitioner objected and counsel urged the court to appoint a 'bar association' attorney in view of the allegations of incompetency of the public defender at the original trial. The judge then announced his intention to appoint a non-public defender attorney as successor counsel. Petitioner complained of sleeping on 'the concrete floor', was asked by the judge if he wanted to return to prison, and stated he 'wanted to go somewhere until the matter was straightened out'. His return no the penitentiary was then ordered.
While the record contains no explanation for the change, the transcript of a hearing on September 24 indicates all counsel then agreed that Chief Judge Boyle had, on July 9, 1963, appointed the public defender who appeared before Judge Napoli on September 24 on petitioner's behalf. That hearing consisted almost entirely of arguments by the public defender urging appointment of another 'bar association' attorney since petitioner so desired. This request was denied and the cause continued for a full hearing on the merits on October 24, 1963. Apparently, the cause was thereafter continued to February 25, 1964. On that date the same assistant public defender who had represented defendant in September appeared on his behalf and the cause was heard by Judge Napoli. A new request to return petitioner from the penitentiary was denied, as was the renewed request for other counsel, and the cause was then heard on the amended petition and the answer denying the allegations of the petition and asserting the defense of Res judicata. While, contrary to the statement in petitioner's brief here, the transcript of that hearing clearly indicates that the assistant public defender called the court's attention to the allegation that perjured testimony was used at the trial, no evidence was introduced to support this or any other allegation set forth in the amended petition. Following the statement by the assistant public defender of the petitioner's contentions and a summary of the State's position and answer, together with introduction of a transcript of the original trial proceedings, the petition was denied.
It is apparent that two of the contentions in both the original and amended petitions, i.e., incompetency of trial counsel and involuntary absence of the defendant from the courtroom when the jury's verdict was returned, could have been raised on petitioner's original writ of error. We have consistently held that where review has once been had by a writ of error, including presentation of a bill of exceptions, any claim which might there have been raised, but was not, is considered waived. (People v. Hamby, 32 Ill.2d 291, 205 N.E.2d 456; People v. Witherspoon, S.Ct.Misc.No. 3559, January, 1964; Ciucci v. People, 21 Ill.2d 81, 85, 171 N.E.2d 34; People v. Dolgin, 6 Ill.2d 109, 111, 126 N.E.2d 681.) Only where the application of the waiver principle would be inconsistent with concepts of...
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