People v. Bernatowicz

• Decision Date: 17 September 1952
• Docket Number: No. 32324,32324
• Citation: 413 Ill. 181,108 N.E.2d 479
• Parties: PEOPLE v. BERNATOWICZ
• Court: Illinois Supreme Court

Page 479

108 N.E.2d 479

413 Ill. 181

PEOPLE v. BERNATOWICZ.

No. 32324.

Supreme Court of Illinois

Sept. 17, 1952.

Rehearing Denied Nov. 17, 1952.

Joseph H. Hinshaw, of Chicago (Oswell G. Treadway, Chicago, of counsel), for plaintiff in error.

Ivan A. Elliott, Atty. Gen., of Springfield, and John S. Boyle, State's Atty., of Chicago (John T. Gallagher, Rudolph L. Janega, Arthur F. Manning, and William J. McGah, Jr., all of Chicago, of counsel), for the People.

SCHAEFER, Justice.

Edward Bernatowicz was found guilty of burglary in the criminal court of Cook County and was sentenced to the penitentiary for a term of not less than three nor more than twenty years. His petition seeking relief under the Post-Conviction Hearing Act was dismissed upon motion, and to review that judgment we allowed a writ of error and appointed counsel to represent him. Counsel appointed to represent the petitioner in this court have performed that duty with earnestness and ability.

At the outset the People's brief points out that although the judgment dismissing the post-conviction petition was entered on June 20, 1951, the petition for writ of error was not filed until August of 1951. Relying on section 7 of the Post-Conviction Hearing Act which provides for review 'by the supreme court on writ of error brought within six months from the entry of the judgment,' (Ill.Rev.Stat.1951, chap. 38, par. 832,) the People argue that the right to obtain a review of the judgment is barred. A claim of limitations as a bar to a writ of error in a reviewing court has, however, consistently been treated as an affirmative defense which is waived if not appropriately presented. Peterson v. Manhattan Life Ins. Co., 244 Ill. 329, 91 N.E. 466; George v. George, 250 Ill. 251, 95 N.E. 167; Ward v. Williams, 270 Ill. 547, 110 N.E. 821; Kelly v. Kelly, 291 Ill. 238, 125 N.E. 890; People v. Murphy, 296 Ill. 532, 129 N.E. 868; People v. Chapman, 392 Ill. 168, 64 N.E.2d 529. This is true in criminal cases, in which the bar of limitations is still asserted by plea, People v. Chapman, 392 Ill. 168, 64 N.E.2d 529, as well as in civil cases in which, under Rule 70, the bar is now raised by motion in the nature of a plea. Ill.Rev.Stat.1951, chap. 110, par. 259.70.

In this case neither motion nor plea was filed, and the contention that the writ of error was not sought in due time was raised for the first time in the People's brief. So raised, it comes too late. It would be unnecessary to say more were it not for a suggestion that the time limitation is jurisdictional, and for a doubt which has been expressed as to the civil or criminal character of a post-conviction proceeding. That a statute limiting the time within which review may be sought by writ of error does not affect the jurisdiction of the reviewing court was settled in Peterson v. Manhattan Life Ins. Co., 244 Ill. 329, 91 N.E. 466. As to the civil or criminal nature of a post-conviction proceeding, the remedy afforded by the Post-Conviction Hearing Act closely resembles that available under the common-law writ of error coram nobis. Both remedies perform the same specific, limited function-the review of an existing judgment,-first by the court which entered it and subsequently by a reviewing court. In each case, the scope of review is limited to specific types of error. The post-conviction proceeding reviews to determine the existence of alleged deprivations of constitutional rights; the common-law writ and its statutory substitute (Ill.Rev.Stat.1951, chap. 110, par. 196), review to determine the existence of certain familiar categories of facts unknown to the trial court. In our opinion, a proceeding under the Post-Conviction Hearing Act is civil in character, just as is a writ of error coram nobis, even though the judgment to which it is directed was entered in a criminal case. People v. Touhy, 397 Ill. 19, 72 N.E.2d 827.

Turning to the merits, the motion to dismiss which was granted by the trial court was based upon three grounds: (1) the invalidity of the Post-Conviction Hearing Act, (2) a want of jurisdiction in the trial court 'because as to nisi prius courts there has been a final adjudication of the allegations of the petition' and (3) the failure of the petition to allege facts showing a substantial denial of constitutional rights. The order sustaining the motion to dismiss did not specify the ground upon which it was based. The first two grounds are clearly untenable. People v. Dale, 406 Ill. 238, 92 N.E.2d 761; People v. Jennings, 411 Ill. 21, 102 N.E.2d 824. Dismissal of the petition on the third ground was warranted only if the allegations of fact, liberally construed in favor of the petitioner, fail to make a showing of imprisonment in violation of the Federal or State constitution. People v. Jennings, 411 Ill. 21, 26, 102 N.E.2d 824. So we are brought to a consideration of the substantive allegations of the petition, to which was attached a transcript of the proceedings at the trial.

Petitioner alleges that he was deprived of constitutional rights upon his trial in that (1) he was coerced into waiving his right to a trial by jury and pleading guilty 'to a charge which the evidence showed he could not be guilty of committing;' (2) he was denied the appointment of competent counsel; (3) he was not given a public trial, and (4) he was prevented from securing a bill of exceptions, by 'appointed counsel having lulled petitioner into a false security by a promise to make a Motion for New Trial and in Arrest of Judgment which he did not do.'

The petition does not allege any facts in support of the claim that petitioner's waiver of trial by jury and his plea of guilty were coerced by a threat of life imprisonment unless he co-operated with the prosecution and the court. The only statement which deals with the conduct of the prosecuting attorney or the assistant public defender prior to the defendant's plea of guilty is the assertion that on his first visit to the defendant the assistant public defender 'then began his methodical climb to that threat of a life sentence.' This is obviously not a sufficient allegation of fact. And, in any event, the punishment for one of the crimes for which the defendant was indicted was imprisonment from one year to life, (Ill.Rev.Stat.1951, chap. 38, par. 84,) so that discussion of the possibility of life imprisonment could not be avoided.

Defendant's petition also suggests, somewhat inconsistently, that he was promised that he would receive a sentence of no longer than ten years if he pleaded guilty. Neither the identity of the promisor nor the time, place or circumstances of the alleged promise is stated. Defendant was fully advised of his rights by the trial court before his plea of guilty was accepted; the penalties to which he would be subject were explained, and he was specifically told that the court was aware of no agreement as to the penalty to be imposed. The...