People v. Core

• Decision Date: 27 May 1971
• Docket Number: No. 43462,43462
• Citation: 48 Ill.2d 544,272 N.E.2d 12
• Parties: The PEOPLE of the State of Illinois, Appellee, v. Ulysee CORE, Appellant.
• Court: Illinois Supreme Court

Page 12

272 N.E.2d 12

48 Ill.2d 544

The PEOPLE of the State of Illinois, Appellee, v. Ulysee CORE, Appellant.

No. 43462.

Supreme Court of Illinois.

May 27, 1971.

Morton Zwick, Director, Illinois Defender Project, Chicago (Bruce L. Herr, Chicago, of counsel), for appellant.

William J. Scott, Atty. Gen., Springfield, and Roland Griffith, State's Atty., Edwardsville (Fred G. Leach and Thomas J. Immel, Asst. Attys. Gen., of counsel), for the People.

UNDERWOOD, Chief Justice.

Defendant Ulysee Core was found guilty of armed robbery in the circuit court of Madison County upon his plea of guilty and sentenced to imprisonment for a term of two to seven years. His Pro se post-conviction petition filed pursuant to the Post-Conviction Hearing Act (Ill.Rev.Stat.1967, ch. 38, par. 122--1 et seq.) was denied on August 6, 1969, following appointment of counsel and an evidentiary hearing. No appeal was taken from that judgment. An application for executive clemency was filed by defendant and denied on November 22, 1969. Defendant filed a second post-conviction petition on April 15, 1970, which was dismissed upon motion by the State on grounds of Res judicata and waiver and this appeal followed.

Defendant's second petition alleges that he was not properly admonished at the change-of-plea proceeding as to the possible sentence for armed robbery and that counsel appointed to represent him in the original post-conviction proceeding was incompetent. In view of this allegation of incompetent representation, defendant now argues that it was error for the court to appoint the same counsel in the second post-conviction proceeding.

It is clear that a defendant's failure to appeal the dismissal of a post-conviction petition, coupled with the doctrines of Res judicata and waiver, ordinarily bars further consideration of all claims which could have been raised. (Ill.Rev.Stat.1967, ch. 38, par. 122--3; People v. Holland, 33 Ill.2d 246, 211 N.E.2d 265; People v. Chapman, 33 Ill.2d 429, 211 N.E.2d 712.) Relying on People v. Polansky, 39 Ill.2d 84, 233 N.E.2d 374 and People v. Slaughter, 39 Ill.2d 278, 235 N.E.2d 566, defendant contends that normal rules of waiver and Res judicata should not be applied since his original petition was dismissed without competent representation. In Polansky, defendant's original post-conviction petition included allegations as to his indigency and requested appointment of counsel. The trial court found no merit to the grounds alleged for post-conviction relief and dismissed the petition without appointing counsel. No appeal was taken from that dismissal. Defendant filed a second post-conviction petition which was dismissed on grounds of Res judicata and waiver. On appeal we held that considerations of due process and fundamental fairness required a relaxation of the general Res judicata and waiver principles where defendant's failure to appeal in the original post-conviction proceeding most probably resulted from the absence of counsel. In Slaughter, counsel was appointed to represent defendant in the post-conviction proceedings, but in a combined appeal from the dismissal of defendant's first petition and from the dismissal of a second petition filed by an attorney appointed by this court, we found that defendant did not receive adequate representation with respect to his original petition. We reversed the dismissal of defendant's original petition and, again relying on considerations of fundamental fairness, we reversed the dismissal of defendant's second petition. Finally in People v. Raymond, 42 Ill.2d 564, 248 N.E.2d 663, we reversed the trial court's dismissal on grounds of Res judicata of defendant's second post-conviction petition and held that 'The representation of the petitioner by his appointed attorney in connection with his first post-conviction petition (from which no appeal was taken) was so clearly inadequate that the dismissal of that petition cannot be regarded as Res judicata of the claim advanced in the petition before us.' Construed together, these cases hold that a defendant's failure to appeal from a dismissal of his first post-conviction petition does not require automatic application of Res judicata and waiver principles to bar consideration of a second petition where such failure to appeal results from clearly inadequate representation or from the absence of representation. If, however, defendant is advised of his right to appeal and does not...