People v. Brown

• Decision Date: 20 September 1972
• Docket Number: No. 44211,44211
• Citation: 287 N.E.2d 663,52 Ill.2d 227
• Parties: The PEOPLE of the State of Illinois, Appellee, v. Lasiah BROWN, Appellant.
• Court: Illinois Supreme Court

Page 663

287 N.E.2d 663

52 Ill.2d 227

The PEOPLE of the State of Illinois, Appellee, v. Lasiah BROWN, Appellant.

No. 44211.

Supreme Court of Illinois.

Sept. 20, 1972.

John F. McNichols, of Defender Project, Springfield, for appellant.

William J. Scott, Atty. Gen., Springfield, and Basil Greanias, State's Atty., Decatur (Fred G. Leach, Asst. Atty. Gen., of counsel), for the People.

WARD, Justice.

This appeal is from the dismissal in the circuit court of Macon County of a petition filed by Isaiah Brown under the Post-Conviction Hearing Act. Ill.Rev.Stat.1969, ch. 38, par. 122--1 et seq.

The only contention the petitioner, an indigent, makes here is that he was denied the effective assistance of counsel through the inadequate representation afforded by the attorney appointed for him by the circuit court in the post-conviction proceeding.

In the Pro se petition which was originally filed the only claim of constitutional violation made was that the trial court improperly refused to suppress as evidence certain weapons found in the trunk of the petitioner's auto, which, the petitioner contended, violated his rights under the fourth and fourteenth amendments to the constitution of the United States. Arguing that this question had been decided by the appellate court against the petitioner, the State moved to dismiss the petition on the ground that the matter was Res judicata.

A hearing on the petition and the motion to dismiss was held on December 29, 1970. The record shows that at the opening of the hearing, the petitioner's attorney obtained permission 'to make a brief representation.' Counsel then told the court that on September 18, 1970, he had written to the petitioner advising that he had been appointed to represent him. The attorney said he notified the petitioner of the State's motion to dismiss, and asked the petitioner if he had any additional grounds for his petition. On September 25, 1970, the attorney stated that he received a reply, in which the petitioner said: '* * * the grounds mentioned in my petition are the only ones that I understand to be a violation against any constitutional rights.' The attorney then informed the court that he had received another letter from the petitioner that very morning, in which the petitioner wrote: 'I feel I have other grounds that I could rely on but they're in the court records concerning my first post-conviction hearing, a lot of errors and violations against my constitutional rights were abused (sic) in that hearing.'

The attorney then told the judge he was joining in the State's Attorney's motion to dismiss and he remarked: 'I gather from this that the petitioner's reliance is upon the grounds mentioned in his petition, that is, the illegal search and seizure of his automobile trunk in which the stolen guns were found. As to any other errors that there might be, I understand he's telling me they were reviewed in the first postconviction hearing. I don't know if he has filed more than one of these or not. But at any rate I cannot get anything specific out of him other than the search and seizure question. I have examined the opinion of the Fourth District Appellate Court on the appeal in this matter, in which the search and seizure question was raised to that Court. They specifically passed on it, and held that the discovery of the stolen merchandise in the trunk was not a violation of his rights, and therefore that having been specifically passed on before, I must agree with the motion of the People in this case that he has no right to have it re-litigated by this court when the Appellate Court has already heard it fully and passed on it.'

An examination of the record of the post-conviction proceedings which has been filed in this court shows that it does not meet the record requirements set out in our Rule 651(c). (Ill.Rev.Stat.1969, ch. 110A, par. 651(c).) Rule 651(c) provides in part: 'The record (of the post-conviction proceedings) filed in that court (on appeal) shall contain a showing, which may be made by the certificate of petitioner's attorney, that the attorney has consulted with petitioner...