People v. Coleman, No. 2-85-0056

CourtUnited States Appellate Court of Illinois
Writing for the CourtREINHARD
Citation140 Ill.App.3d 806,489 N.E.2d 455,95 Ill.Dec. 234
Docket NumberNo. 2-85-0056
Decision Date05 February 1986
Parties, 95 Ill.Dec. 234 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Douglas COLEMAN, Respondent-Appellant.

Page 455

489 N.E.2d 455
140 Ill.App.3d 806, 95 Ill.Dec. 234
PEOPLE of the State of Illinois, Plaintiff-Appellee,
v.
Douglas COLEMAN, Respondent-Appellant.
No. 2-85-0056.
Appellate Court of Illinois,
Second District.
Feb. 5, 1986.

Page 456

[140 Ill.App.3d 807] [95 Ill.Dec. 235] G. Joseph Weller, Marguerite S. Klimkowski, Office of State Appellate Defender, Elgin, for respondent-appellant.

Fred L. Foreman, State's Atty., Waukegan, William L. Browers, Virginia M. Ashley, State's Attys. Appellate Service Com'n, Elgin, for plaintiff-appellee.

REINHARD, Justice:

The defendant, Douglas Coleman, brings this appeal from an order denying his post-conviction petition. Defendant previously had been found guilty in a jury trial of armed robbery (Ill.Rev.Stat.1981, ch. 38, par. 18-2(a)) and subsequently had entered a plea of guilty to unlawful use of weapons (Ill.Rev.Stat.1981, ch. 38, par. 24-3.1(a)(3)) for which he had been sentenced to concurrent terms of imprisonment of nine and three years, respectively. No direct appeal was taken from these convictions.

Defendant raises two issues on appeal: (1) whether he was denied the effective assistance of counsel in his post-conviction proceeding where his counsel failed to comply with Supreme Court Rule 651(c) by [140 Ill.App.3d 808] not reading the trial transcript which would have disclosed the improper admission of illegally seized evidence; and (2) whether the decision in Lane v. Sklodowski (1983), 97 Ill.2d 311, 73 Ill.Dec. 462, 454 N.E.2d 322, operated to extend his sentence thereby constituting an ex post facto violation of the United States and Illinois Constitutions.

As this appeal is from the denial of defendant's post-conviction petition, we need only briefly summarize the trial proceedings which resulted in the defendant's convictions for armed robbery and unlawful use of weapons. Defendant was arrested on a warrant for an unrelated charge. At the time of his arrest, he was riding as a passenger in the backseat of his mother's

Page 457

[95 Ill.Dec. 236] automobile. A pistol was found underneath the front seat, and the arresting officers also found a wristwatch on the backseat where one of the officers saw defendant place it just before exiting the car. Defendant was identified by the victim of the armed robbery as the person who robbed him. The victim also identified the pistol and testified that the wristwatch found in the car belonged to him and was taken in the robbery. Defendant was found guilty of armed robbery by a jury. Following the imposition of a nine-year term of imprisonment, defendant entered a plea of guilty to unlawful use of weapons and was sentenced to a concurrent three-year term of imprisonment.

Defendant filed a pro se post-conviction petition in which he asserts that he was denied his right of due process under the United States and Illinois Constitutions. The petition contended that a supreme court decision eliminated the Department of Corrections' policy of awarding meritorious good time beyond 90 days and which policy the trial court had considered in fixing his sentence. He therefore concluded that his constitutional rights were violated because the elimination of the meritorious good time will result in a longer sentence than what the trial court had intended him to serve. Counsel was appointed for defendant; however, only the transcripts of both sentencing hearings were prepared for review below. Counsel orally represented that he consulted with the defendant and would stand on the pro se petition. Following arguments, the post-conviction petition was denied.

On appeal, defendant's appellate counsel contends that defendant was denied the effective assistance of counsel in the post-conviction proceedings because his counsel failed to review the full record of the trial proceedings to ascertain any cognizable constitutional violations as mandated by Supreme Court Rule 651(c) (104 Ill.2d R. 651(c)). Appellate counsel maintains that had the transcript of the armed robbery proceedings been prepared and read, counsel below would have discovered that there was an illegal seizure of the wristwatch which the trial [140 Ill.App.3d 809] court erroneously failed to suppress at a pretrial suppression hearing. Defendant has included in the record on appeal the transcripts of the trial proceedings of the armed robbery offense which were not filed in the post-conviction proceeding as below and do not appear to have been examined by defendant's counsel at those proceedings. Appellate counsel has fully briefed the issue of the asserted illegal seizure and requests that this court reverse his conviction and remand for a new trial or, alternatively, remand for a new post-conviction proceeding.

We agree that defendant's counsel at the post-conviction proceedings failed to comply with the explicit requirement of Supreme Court Rule 651(c) that mandates a showing that counsel has examined the trial record. (People v. Brown (1972), 52 Ill.2d 227, 230, 287 N.E.2d 663; People v. Jones (1984), 129 Ill.App.3d 368, 371, 84 Ill.Dec. 681, 472 N.E.2d 818.) Counsel's examination of only the sentencing hearing transcripts was not enough to determine if amendments should be made to the petition, and a complete record of the proceedings should have been obtained and examined. (See People v. Gonzales (1973), 15 Ill.App.3d 265, 267, 304 N.E.2d 294.) Nevertheless, we need not remand for a new post-conviction proceeding where the full trial record is before us, the alleged constitutional violation has been briefed by the parties, and the defendant has requested that we address the illegal seizure issue, along with the other issue he raises in this appeal. Under these circumstances, there appears to be no reason why this question of law may not be decided here. Cf. People v. Lippert (1982), 89 Ill.2d 171, 178, 59 Ill.Dec. 819, 432 N.E.2d 605.

The alleged illegal seizure occurred when a wristwatch was seized from the backseat of his mother's vehicle in which defendant was riding at the time he was arrested on a warrant charging him with attempted robbery. A motion to suppress this evidence and other evidence, not pertinent to this appeal,...

To continue reading

Request your trial
4 practice notes
  • Outlaw v. O'Leary, No. 3-86-0854
    • United States
    • United States Appellate Court of Illinois
    • September 28, 1987
    ...no showing that he has been unconstitutionally disadvantaged by the amendment as interpreted in Lane. (See People v. Coleman (1986), 140 Ill.App.3d 806, 95 Ill.Dec. 234, 489 N.E.2d 455.) Accordingly, we find no merit in the petitioner's Sixth, the petitioner argues that the Prisoner Review ......
  • People ex rel. Braver v. Washington, No. 1-97-4693.
    • United States
    • Illinois Appellate Court
    • December 30, 1999
    ...3 of section 3-6-3(a), not the good conduct credit automatically earned by a prisoner pursuant to subsection 2.1. In People v. Coleman, 140 Ill.App.3d 806, 95 Ill.Dec. 234, 489 N.E.2d 455 (1986), the court noted that "credit for meritorious service under subsection (3) is neither automatica......
  • Lake County Bd. of Review v. Property Tax Appeal Bd. of State of Ill., No. 50
    • United States
    • United States Appellate Court of Illinois
    • February 5, 1986
    ...the aggregate assessed valuation of the taxing districts. They maintain that if they had known the assessment of Great America Page 455 [95 Ill.Dec. 234] would be reduced, they would have levied taxes at the maximum rate to meet their budgetary requirements. Finally, they contend that the t......
  • People v. Williams, No. 84-2094
    • United States
    • United States Appellate Court of Illinois
    • July 3, 1986
    ...see also Baker v. Illinois Department of Corrections (1985), 106 Ill.2d 100, 87 Ill.Dec. 560, 477 N.E.2d 686; People v. Coleman (1986), 140 Ill.App.3d 806, 812-13, 95 Ill.Dec. 234, 489 N.E.2d The defendant's petition was docketed on June 7. Approximately a week thereafter, the trial court h......
4 cases
  • Outlaw v. O'Leary, No. 3-86-0854
    • United States
    • United States Appellate Court of Illinois
    • September 28, 1987
    ...no showing that he has been unconstitutionally disadvantaged by the amendment as interpreted in Lane. (See People v. Coleman (1986), 140 Ill.App.3d 806, 95 Ill.Dec. 234, 489 N.E.2d 455.) Accordingly, we find no merit in the petitioner's Sixth, the petitioner argues that the Prisoner Review ......
  • People ex rel. Braver v. Washington, No. 1-97-4693.
    • United States
    • Illinois Appellate Court
    • December 30, 1999
    ...3 of section 3-6-3(a), not the good conduct credit automatically earned by a prisoner pursuant to subsection 2.1. In People v. Coleman, 140 Ill.App.3d 806, 95 Ill.Dec. 234, 489 N.E.2d 455 (1986), the court noted that "credit for meritorious service under subsection (3) is neither automatica......
  • Lake County Bd. of Review v. Property Tax Appeal Bd. of State of Ill., No. 50
    • United States
    • United States Appellate Court of Illinois
    • February 5, 1986
    ...the aggregate assessed valuation of the taxing districts. They maintain that if they had known the assessment of Great America Page 455 [95 Ill.Dec. 234] would be reduced, they would have levied taxes at the maximum rate to meet their budgetary requirements. Finally, they contend that the t......
  • People v. Williams, No. 84-2094
    • United States
    • United States Appellate Court of Illinois
    • July 3, 1986
    ...see also Baker v. Illinois Department of Corrections (1985), 106 Ill.2d 100, 87 Ill.Dec. 560, 477 N.E.2d 686; People v. Coleman (1986), 140 Ill.App.3d 806, 812-13, 95 Ill.Dec. 234, 489 N.E.2d The defendant's petition was docketed on June 7. Approximately a week thereafter, the trial court h......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT