People v. Brumas

• Decision Date: 26 March 1986
• Docket Number: No. 3-85-0356,3-85-0356
• Parties: , 96 Ill.Dec. 494 The PEOPLE of the State of Illinois, Respondent-Appellee, v. John J. BRUMAS, Petitioner-Appellant.
• Court: United States Appellate Court of Illinois

Page 773

491 N.E.2d 773

142 Ill.App.3d 178, 96 Ill.Dec. 494

The PEOPLE of the State of Illinois, Respondent-Appellee, v. John J. BRUMAS, Petitioner-Appellant.

No. 3-85-0356.

Appellate Court of Illinois,

Third District.

March 26, 1986.

Gary R. Peterson, Asst. Defender, Springfield, Robert Agostinelli, Deputy Defender, Office of the State Appellate Defender, Ottawa, for petitioner-appellant.

James T. Teros, State's Atty., Rock Island, Gary F. Gnidovec, John X. Breslin, State's Attys. Appellate Service Com'n, Ottawa, for respondent-appellee.

Justice SCOTT delivered the opinion of the court:

The defendant, John Brumas, on April 16, 1984 entered negotiated pleas of guilty in the circuit court of Rock Island County in five cases, all of which charged him with the offense of unlawful delivery of a controlled substance. He was sentenced to terms of imprisonment ranging from three years to six years and the sentences were ordered to be served concurrently. The trial court also imposed fines and ordered restitution in each case. The restitution ordered was $9,000 which represented the amount spent by the Moline Police Department in purchasing drugs from the defendant.

The defendant did not perfect a direct appeal of his convictions but on March 27, 1985, filed a petition for post-conviction relief. The petition alleged in part that the defendant's constitutional rights were violated in that his attorney operated under a conflict of interest and that he (the defendant) received ineffective assistance of counsel. The defendant attached to his petition his affidavit which contained allegations of entrapment; that his attorney was an assistant Attorney General and prosecuted consumer fraud cases for the State; that he, the defendant, signed a document waiving any objection to being represented by this attorney but he signed the waiver not fully understanding the same but as the result of the attorney's insistence, with the understanding that a trial would be had and that he was advised by his counsel that he had no defense and that if he did not agree to the negotiated plea counsel stated that he would withdraw from the case.

On April 10, 1985, the State filed a motion to dismiss the petition for post-conviction relief without an evidentiary hearing. The State's motion was accompanied by affidavits from defendant's trial attorney and an undercover agent. On May 6, 1985, the trial court without an evidentiary hearing dismissed the petition for post-conviction relief.

Several issues are raised in this appeal and we first direct our attention to defendant's assertion that the trial court erred in dismissing the post-conviction petition without an evidentiary hearing as to his allegation that he was denied effective assistance of counsel.

The trial judge was confronted with defendant's affidavit containing allegations of ineffective assistance of counsel and a motion to dismiss filed by the State supported by affidavits of defendant's trial attorney and an undercover agent which alleged facts in contradiction to the defendant's affidavit. The State in its brief filed in this appeal concede that normally the facts alleged in defendant's petition would require an evidentiary hearing but that the need for such a hearing in the instant case was obviated by the affidavits filed by the State. We disagree with the State's reasoning since our supreme court has held that a motion to dismiss a post-conviction petition assumes the truth of allegations to which it is directed and questions only their legal sufficiency. (People v. Wilson (1968), 39 Ill.2d 275, 235 N.E.2d 561.) The affidavits filed by the parties present a factual conflict which requires an evidentiary hearing.

We reach the foregoing conclusion even though the State strenuously argues that the defendant waived the issue of the necessity for an evidentiary hearing. The State first contends that the defendant pled guilty and has failed to file a motion to vacate his pleas pursuant to Supreme Court Rule 604(d) (Ill.Rev.Stat.1983, ch. 110A, par. 604(d)). This argument is misplaced since the defendant...