People v. Churchill
| Decision Date | 12 July 1985 |
| Docket Number | No. 3-84-0372,3-84-0372 |
| Parties | , 90 Ill.Dec. 536 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Kenneth W. CHURCHILL, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
Walter D. Barra, James J. Elson, Chartered, Canton, for defendant-appellant.
Joan C. Scott, State's Atty., Lewistown, Terry A. Mertel, John X. Breslin, State's Attys. Appellate Service Com'n, Ottawa, for plaintiff-appellee.
Opinion
The defendant, Kenneth Churchill, appeals from the judgment of the circuit court of Fulton County dismissing his amended petition for post-conviction relief. We affirm.
Defendant was represented at trial by Ronald Hanna, a court appointed attorney. Following trial, defendant, prose, filed a motion for a new trial. At defendant's request, Hanna moved to withdraw from the case, and James Murphy was appointed to represent the defendant. Defendant's motion for a new trial was denied and he was sentenced to probation for the felony charge and 90 days imprisonment for the misdemeanor offense. Defendant appealed his conviction and was represented by the office of the State Appellate Defender. His conviction was affirmed. (See, People v. Churchill (1980), 80 Ill.App.3d 405, 35 Ill.Dec. 696, 399 N.E.2d 985.) After defendant filed a postconviction petition for relief pro se, Craig Collins was appointed to represent him. This petition was dismissed without an evidentiary hearing. Defendant then filed a motion to appeal the dismissal of his petition and the State Appellate Defender was again appointed to perfect the appeal. Subsequently, that office withdrew as counsel, and the law offices of O'Bryant and Clark were appointed. We affirmed the trial court's decision and held that since the defendant could have, and should have, raised the issue of incompetency of trial counsel on direct appeal, his failure to do so constituted a waiver on his part. (See, People v. Churchill (1981), 92 Ill.App.3d 1006, 48 Ill.Dec. 364, 416 N.E.2d 395.) Defendant subsequently filed a second petition for postconviction relief and William Davis was appointed to represent him. This petition was also denied, but no appeal was taken. Finally, defendant filed a third petition for postconviction relief and a motion for appointment of yet another attorney to represent him. Both the petition and motion were denied and this appeal follows. James Elson was appointed to represent defendant on this appeal.
We are asked to decide the following issues: (1) whether the trial court erred in dismissing defendant's third petition for postconviction relief; and (2) whether the trial court erred in denying defendant's motion for court-appointed counsel.
Initially, defendant contends the trial court erred in dismissing his third petition for postconviction relief by not making the required findings of fact and conclusions of law within thirty days of the filing and docketing of the petition as required by the Criminal Code of 1961. (Ill.Rev.Stat.1983, ch. 38, par. 122-2.1.) The facts disclose that the defendant's petition was filed March 9, 1984, and the court entered its order denying the petition May 31, 1984. It is undisputed that more than thirty days passed from the time of filing the petition to the date of the order. While the better practice is to follow the time limits allowed, and while we do not approve of the procedural delay, we nevertheless find it was not prejudicial in this case and does not constitute reversible error. Further, the statute does not provide any sanctions for non-compliance when no prejudice is found. Where no grounds for relief are set forth in the postconviction petition as in the instant case, no possible useful purpose could be furthered by holding that an evidentiary hearing should be held.
Defendant also contends that the trial court erred in dismissing his third petition because the issue of competency of counsel is a proper subject for postconviction relief. Defendant relies on People v. Pannell (1977), 44 Ill.App.3d 885, 3 Ill.Dec. 646, 358 N.E.2d 1331, for this proposition. In Pannell, we held that "[i]ncompetency of counsel both at the trial and appellate level is a proper question for consideration in a postconviction proceeding." (44 Ill.App.3d at 887, 3 Ill.Dec. at 647, 358 N.E.2d at 1332.) This proposition, however, is not applicable to the facts in the present case.
Defendant's third petition is basically a restatement of his second petition which basically restated his first petition. The only differences between the three petitions appear to be that each petition merely adds new attorneys to the list of those alleged to be incompetent. This strategy of continually filing new petitions for postconviction relief based on incompetency of ...
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...v. Cox (1985), 136 Ill.App.3d 623, 91 Ill.Dec. 140, 483 N.E.2d 422 (First Dist., 5th Div.); People v. Churchill (1985), 136 Ill.App.3d 123, 90 Ill.Dec. 536, 482 N.E.2d 355 (Third Dist.); People v. Baugh (1985), 132 Ill.App.3d 713, 87 Ill.Dec. 598, 477 N.E.2d 724 (Fourth Dist.); see also Peo......
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