People v. Campbell

• Decision Date: 31 December 1984
• Docket Number: No. 4-84-0404,4-84-0404
• Citation: 84 Ill.Dec. 913,129 Ill.App.3d 819,473 N.E.2d 129
• Parties: , 84 Ill.Dec. 913 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Terry Wayne CAMPBELL, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 129

473 N.E.2d 129

129 Ill.App.3d 819, 84 Ill.Dec. 913

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Terry Wayne CAMPBELL, Defendant-Appellant.

No. 4-84-0404.

Appellate Court of Illinois,

Fourth District.

Dec. 31, 1984.

Daniel D. Yuhas, Deputy State Appellate Defender, Springfield, for defendant-appellant.

Thomas J. Difanis, State's Atty., Urbana, Robert J. Biderman, Deputy Director, Perry Lee Miller, Staff Atty., State's Attys. Appellate Service Com'n, Springfield, for plaintiff-appellee.

GREEN, Presiding Justice:

On May 31, 1984, following an evidentiary hearing in the circuit court of Champaign County, defendant, Terry Wayne Campbell's post-conviction petition (Ill.Rev.Stat.1983, ch. 38, par. 122-1) was dismissed. He sought relief from (1) his conviction of burglary entered by that court on October 18, 1982, and (2) his subsequent sentence of 5 years' imprisonment. That conviction and sentence had been affirmed by this court on direct appeal in People v. Campbell (May 24, 1983, 4th Dist. No. 4-82-0761, order under Supreme Court Rule 23). He now appeals the judgment dismissing his post-conviction petition. We affirm.

The evidence at the post-conviction hearing showed that defendant's counsel refused defendant's request to seek a substitution of the judge assigned to try the burglary charge. Defendant testified that the counsel seemed to "shrug off" his repeated requests for substitution. Defendant also testified that he had previously appeared before the assigned judge in a juvenile delinquency proceeding, and that judge then told him that if he, defendant, ever appeared before that judge again, that judge would see that defendant would "serve time" in the penitentiary. Defendant maintains that, because of the foregoing, he was deprived of effective assistance at trial.

Defense counsel testified at the hearing that he explained to defendant his reasons for not filing a motion to substitute judges. Counsel stated the reasons were: (1) Counsel was familiar with the judge and the judge made such remarks in almost every case; (2) the judge might appear to recognize defendant, but actually the judge seldom had any recollection of those who pass through his courtroom; (3) even if the judge did remember defendant, he would not let previous appearances influence his disposition of defendant's current case; and (4) counsel believed that the judge would be more inclined to give a particular, important jury instruction than any judge who would be substituted.

At the conclusion of the post-conviction hearing, the judge hearing that matter concluded that defense counsel probably did merely admonish defendant "not to worry" about the assigned judge and did not give defendant the reasons counsel testified to in the post-conviction proceedings. However, the hearing judge deemed those reasons to be "good and accurate" and probably to be reasonably good strategy to follow. Then, the hearing judge, after having examined the presentence report, concluded, based on defendant's prior convictions and adjustment on probation, that the sentence imposed was appropriate. The court denied the relief sought in the post-conviction petition.

Unquestionably, an accused in a criminal case has a due process right to be tried before an unbiased judge. (In re Murchison (1955), 349 U.S. 133, 99 L.Ed. 942, 75 S.Ct. 623.) An accused also has a statutory right under section 114-5 of the Code of Criminal Procedure of 1963 (Ill.Rev.Stat.1983, ch. 38, par. 114-5) to one substitution of judge if the request is timely made and based upon an allegation of prejudice which need not be proved. However, no case, called to our attention, holds that an accused has an absolute right to a substitution of judge without making a showing of actual prejudice.

An accused also has a sixth amendment right to be represented by counsel or to waive counsel and proceed pro se. However, an accused has no such right to both representation by counsel and to also conduct portions of the proceedings on his own. (Faretta v. California (1975), 422 U.S. 806, 45 L.Ed.2d 562, 95 S.Ct. 2525.) Nevertheless, an accused represented by counsel retains a right to make decisions involving "fundamental rights" while those strategic matters involving "the superior ability of trained counsel" are left to that counsel. (Jones v. Barnes (1983), 463 U.S. 745, ----, 103 S.Ct. 3308, 3312, 77 L.Ed.2d 987, 993.) A noted authority describes those decisions involving "fundamental rights" as generally being (1) whether to enter a plea of guilty or not guilty, (2)...