People v. Frank

• Decision Date: 27 May 1971
• Docket Number: No. 42773,42773
• Citation: 272 N.E.2d 25,48 Ill.2d 500
• Parties: The PEOPLE of the State of Illinois, Appellee, v. Eddie FRANK, Appellant.
• Court: Illinois Supreme Court

Page 25

272 N.E.2d 25

48 Ill.2d 500

The PEOPLE of the State of Illinois, Appellee, v. Eddie FRANK, Appellant.

No. 42773.

Supreme Court of Illinois.

May 27, 1971.

Frederick F. Cohn and Lorraine N. Woods, Chicago, appointed by the court, for appellant.

William J. Scott, Atty. Gen., Springfield, and Edward V. Hanrahan, State's Atty., Chicago (James B. Zagel, Asst. Atty. Gen., and Robert A. Novelle and Zenon Forowycz (Graduate Law Student), Asst. State's Atty., of counsel), for the People.

UNDERWOOD, Chief Justice.

Defendant, Eddie Frank, was convicted in a 1963 Cook County circuit court bench trial of the sale of narcotics, and sentenced to a term of 12 to 15 years imprisonment. His writ of error with appointed counsel was, in 1964, transferred to the appellate court, which affirmed. (People v. Frank, 51 Ill.App.2d 251, 201 N.E.2d 197.) There was no petition for leave to appeal to this court from the appellate court affirmance. The present appeal is from the dismissal, without an evidentiary hearing, of a subsequent petition for post-conviction relief. Ill.Rev.Stat.1969, ch. 38, par. 122--1 et seq.

The main witness for the State at trial was James Henry, an informer, who testified that he had engaged in a 'controlled buy' of narcotics from Frank. The transaction occurred in a pool hall, with marked money provided by three police officers, who waited out of sight. After the transaction, the informer turned a tinfoil packet over to the officers, and directed them to Frank, who was then arrested and found to have a marked bill in his possession. It is now claimed that when the informer took the stand, defendant recognized him as a former fellow prison inmate, James Jones, who had been convicted of burglary. On cross-examination, defense counsel asked the informer if he had ever served time for a felony, but an objection to the question was sustained. The money was marked as exhibit 1 at trial, and the tinfoil packet was marked as exhibit 6. It was stipulated that a police chemist would testify, if called, that he had performed a qualitative analysis on exhibit 1 and concluded that it contained heroin.

Frank raises several issues in the post-conviction proceedings. He argues first that he was not proved guilty beyond a reasonable doubt, since the stipulated evidence merely established that exhibit 1, the marked money, rather than exhibit 6, the tinfoil packet sold by Frank, contained heroin. It is further claimed that the court-appointed counsel on appeal was incompetent for failing to raise this issue in the appellate court. Defendant also contends that the State concealed the true identity of the informer, that the State knowingly permitted the informer to testify falsely as to his identity and employment, and that his accusation did not constitute probable cause for the arrest and search of defendant. The trial court considered each contention on the merits, and denied relief. The State now argues that the issue of reasonable doubt is not a constitutional question within the scope of the Post-Conviction Hearing Act, and, as with the issue dealing with the arrest and search, was barred by Res judicata and waiver as a result of the appeal. As for the competency of defendant's counsel on appeal, the State contends that it is not an issue arising 'in the proceeding which resulted in his conviction', and therefore is not available under the Act. The State also argues that defendant's petition failed to adequately allege or support the charge that the prosecution knowingly concealed the informer's identity or permitted false testimony by him.

At the outset, we shall consider the application of res judicata and waiver, and the closely related issue of the competency of counsel on the direct appeal. We have earlier suggested that the doctrine of waiver ought not to bar issues from consideration under the Post-Conviction Hearing Act where the alleged waiver stems from incompetency of appointed counsel on appeal (see People v. Weaver, 45 Ill.2d 136, 256 N.E.2d 816; People v. McCracken, 43 Ill.2d 153, 251 N.E.2d 212; People v. Doherty, 36 Ill.2d 286, 222 N.E.2d 501), or denial of counsel on appeal (People v. Keagle, 37 Ill.2d 96, 224 N.E.2d 834). This notion comports with related holdings that waiver will not apply where it would act as a denial of due process (People v. Thompson, 36 Ill.2d 332, 223 N.E.2d 97; People v. Burson, 11 Ill.2d 360, 143 N.E.2d 239), or of fundamental fairness (People v. Hamby, 32 Ill.2d 291, 205 N.E.2d 456) where appointed counsel on appeal thwarted the defendant's vigorous and manifest efforts (see People v. Kamsler, 39 Ill.2d 73, 233 N.E.2d 415; People v. Agnello, 35 Ill.2d 611, 221 N.E.2d 658; People v. Ashley, 34 Ill.2d 402, 216 N.E.2d 126) to raise additional issues. In view of the need to protect the right to appeal with the aid of competent counsel, and upon appraisal of the spirit and ultimate purpose of the Post-Conviction Hearing Act, we conclude that the Act provides a proper vehicle for review of those issues as to which review by direct appeal has been unconstitutionally denied by deprivation of the right to appeal, the right to competent counsel on appeal, or the concept of fundamental fairness.

Turning to the contentions of petitioner Frank, it is claimed that by virtue of the erroneous stipulation, there is a failure of proof that the substance he allegedly sold to the informer was heroin. Frank further maintains that the requirement of proof of guilt beyond a reasonable doubt is a matter of constitutional right, and therefore proper for consideration under the Post-Conviction Hearing Act. We disagree. It has been repeated many times that it is not the purpose of the Act to redetermine...