People v. Clements
| Decision Date | 29 September 1967 |
| Docket Number | No. 40545,40545 |
| Parties | The PEOPLE of the State of Illinois, Appellee, v. Jerry Dean CLEMENTS, Appellant |
| Court | Illinois Supreme Court |
Philip Michael Basvic, Chicago, for appellant.
William G. Clark, Atty. Gen., Springfield, and Joseph W. Hickman, State's Atty., Benton (Fred G. Leach, Asst. Atty. Gen., of counsel), for appellee.
Petitioner, Jerry Dean Clements, was convicted of burglary in the circuit court of Franklin County and on direct appeal to this court his conviction was affirmed. (People v. Clements, 28 Ill.2d 534, 192 N.E.2d 923) Subsequently, he filed a petition under the Post-Conviction Hearing Act (Ill.Rev.Stat.1965, chap. 38, par. 122--1 et seq.), alleging that at trial he suffered a substantial denial of his constitutional rights, to-wit: that he was denied due process because the special grand jury which indicted him was illegally constituted, that he was convicted on the perjured testimony of two accomplices, that his court-appointed attorney was incompetent and that his sentence was manifestly excessive. The State filed an answer thereto which petitioner moved to strike, charging that it was, in effect, a general denial and raised no legal defense. That motion was denied. Petitioner then introduced the entire trial court record into the post-conviction hearing along with affidavits and exhibits in support of the allegations of his petition. The court conducted a hearing on the petition, and after the presentation of all evidence, including the testimony of witnesses, denied the petition.
From this denial petitioner appeals now contending that the grand jury which indicted him was illegally constituted, that his court-appointed counsel at trial was so incompetent as to deny him due process, that the trial court erred in not striking the State's answer to his petition and that at his trial the court failed to intervene and protect his right to a fair and impartial trial.
Considering petitioner's arguments in the order presented, we find that we have previously given his contention concerning the legality of the grand jury a full review when we passed on his writ of error (28 Ill.2d 534, 192 N.E.2d 923) and therefore that claim is Res judicata. People v. Cox, 34 Ill.2d 66, 213 N.E.2d 524.
With respect to petitioner's contention that 'his court appointed trial counsel' was so grossly incompetent as to deprive him of due process, we note that he made this charge in his petition, supporting it with excerpts from the trial record, and at the hearing thereon called his trial counsel as his own witness. His counsel testified that although he was the public defender for Franklin County at the time of the trial and was frequently referred to in the trial record as appointed counsel, he was in fact retained to represent petitioner at trial and was not appointed to do so by the court. This testimony was not controverted by any other evidence introduced at the hearing, including the trial record. Therefore, we find it unnecessary to consider petitioner's allegations of incompetency, since where petitioner in his original trial is represented by counsel of his own choice, he may not in a post-conviction proceeding allege, as a ground for reversing his conviction, the incompetency of counsel, for...
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People v. Richardson
...of the [A]ct that [such] claims be adjudicated on the pleadings.’ People v. Airmers, 34 Ill.2d 222, 226 (1966). See also People v. Clements, 38 Ill.2d 213, 216 (1967) (same). Rather, the function of the pleadings in a proceeding under the Act ‘is to determine whether the petitioner is entit......
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People v. Coleman
...claims be adjudicated on the pleadings." People v. Airmers, 34 Ill.2d 222, 226, 215 N.E.2d 225 (1966). See also People v. Clements, 38 Ill.2d 213, 216, 230 N.E.2d 185 (1967) (same). Rather, the function of the pleadings in a proceeding under the Act "is to determine whether the petitioner i......
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People v. Somerville
...incompetency of counsel presents no constitutional question for consideration in a post-conviction proceeding. People v. Clements, 38 Ill.2d 213, 215, 230 N.E.2d 185; People v. Farmer, 34 Ill.2d 218, 219, 215 N.E.2d 232; Davies v. People, 10 Ill.2d 11, 15, 139 N.E.2d 216; People v. Morris, ......
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People v. Cox
...was never raised in the trial court and ought not to be considered here. (Ill.Rev.Stat.1971, ch. 38, par. 122--3; People v. Clements (1967), 38 Ill.2d 213, 216, 230 N.E.2d 185; People v. Eldredge (1969), 41 Ill.2d 520, 528, 244 N.E.2d 151.) But if it is to be considered, the majority is, in......