People v. Carlton

• Decision Date: 05 August 1975
• Docket Number: No. 61461,61461
• Citation: 333 N.E.2d 596,31 Ill.App.3d 313
• Parties: PEOPLE of the State of Illinois, Respondent-Appellee, v. Joseph CARLTON, Petitioner-Appellant.
• Court: United States Appellate Court of Illinois

Page 596

333 N.E.2d 596

31 Ill.App.3d 313

PEOPLE of the State of Illinois, Respondent-Appellee, v. Joseph CARLTON, Petitioner-Appellant.

No. 61461.

Appellate Court of Illinois, First District, Second Division.

Aug. 5, 1975.

James J. Doherty, Public Defender, Chicago, (Ronald P. Alwin, Chicago, of counsel), for petitioner-appellant.

Bernard Carey, State's Atty., Chicago, for respondent-appellee.

Before DOWNING, P.J., and STAMOS and LEIGHTON, JJ.

PER CURIAM.

Joseph Carlton, petitioner, was found guilty after a bench trial of the crimes of rape and robbery. He was sentenced to a term of 7 to 20 years on each charge, the sentences to run concurrently. Petitioner appealed and on May 6, 1974, this court affirmed the judgment of conviction. People v. Carlton, 19 Ill.App.3d 743, 312 N.E.2d 744.

On June 13, 1974, petitioner filed a Pro se post-conviction petition. Counsel was appointed to represent petitioner, and on January 14, 1975, upon motion of the State, petitioner's Pro se post-conviction petition was dismissed without an evidentiary hearing. Petitioner appeals that dismissal.

The public defender of Cook County, who was appointed to represent petitioner on appeal, has filed a motion in this court for leave to withdraw as appellate counsel. The motion is supported by a brief pursuant to the requirements set out in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493. The brief states that the only possible argument which could be raised on appeal is that the trial court improperly dismissed petitioner's Pro se post-conviction petition without an evidentiary hearing. The brief concludes that there is 'no argument which a lawyer could make in good faith in support of this appeal.' Petitioner was mailed copies of the motion and brief on May 16, 1975. He was informed that he had until July 15, 1975 to file any additional points he might choose in support of his appeal. He has responded.

The brief of the public defender of Cook County states that the only possible argument which could be raised on appeal is that the trial court improperly dismissed petitioner's Pro se post-conviction petition without an evidentiary hearing. The Pro se post-conviction petition alleged that the trial court did not adequately admonish the petitioner as to his right to a trial by jury.

The rule is well established that where a defendant takes a direct appeal of his conviction, all claims which are raised in those proceedings cannot be raised subsequently in post-conviction proceedings under the doctrine of Res judicata. (People v. Weaver, 45 Ill.2d 136, 256 N.E.2d 816.) The concept of Res judicata also includes all claims which were known from the original trial record and which could have been raised on direct appeal but were not, those claims being considered waived. People v. Adams, 52 Ill.2d 224, 287 N.E.2d 695.

In the case at bar, petitioner's present argument that he was not properly admonished as to his right to a trial by jury was fully known from the original trial record. Since petitioner did not raise this argument on direct review of his conviction, he is now barred from raising the argument for the first time in post-conviction proceedings.

In his response to this court, petitioner has argued several factual issues which he claims raise a reasonable doubt as to his guilt. In his direct appeal petitioner argued that the evidence was insufficient to establish his guilt beyond a reasonable doubt. After an extensive review of the record, this court rejected petitioner's contention and affirmed his conviction. Having once raised this issue in his direct appeal, petitioner is now barred from relitigating the issue in post-conviction proceedings under the doctrine of Res judicata.

In addition, the rule is...