People v. Farmer

• Decision Date: 23 October 1986
• Docket Number: No. 4-86-0239,4-86-0239
• Parties: , 102 Ill.Dec. 153 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Joe Lewis FARMER, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 710

499 N.E.2d 710

148 Ill.App.3d 723, 102 Ill.Dec. 153

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Joe Lewis FARMER, Defendant-Appellant.

No. 4-86-0239.

Appellate Court of Illinois Fourth District.

Oct. 23, 1986.

Rehearing Denied Nov. 19, 1986.

Daniel D. Yuhas, Deputy Defender, Office of State Appellate Defender, Springfield, and David Bergschneider, Asst. Defender, for defendant-appellant.

Joe Lewis Farmer, pro se.

David L. Bartholomew, State's Atty., Tuscola, Kenneth R. Boyle, Director, Robert J. Biderman, Deputy Director, State's Attys. Appellate Prosecutor, Springfield, and Michael Blazicek, Staff Atty., for plaintiff-appellee.

Justice MORTHLAND delivered the opinion of the court:

Charged by information with five counts of armed robbery, the defendant on July 18, 1979, acting pro se, entered a negotiated plea of guilty to one count and was sentenced to 7 years' imprisonment. Defendant subsequently filed a post-conviction petition on February 13, 1986, pursuant to the Post-Conviction Hearing Act (Act) (Ill.Rev.Stat.1985, ch. 38, par. 122-1 et seq.). That petition alleged he was denied assistance of counsel and that he was mentally incompetent at the time of his guilty plea. On March 12, 1986, the circuit court of Douglas County dismissed the petition as "patently without merit" under section 122-2.1 of the Act (Ill.Rev.Stat.1985, ch. 38, par. 122-2.1). Defendant appeals, assailing the validity and constitutionality of section 122-2.1 on several grounds, many of which have already been decided by this court.

Section 122-2.1 provides that a trial court shall undertake an initial examination of a post-conviction petition within 30 days of filing. If the court determines the petition is "frivolous" or "patently without merit," the petition shall be dismissed within this time frame by written order specifying findings of fact and conclusions of law. (Ill.Rev.Stat.1985, ch. 38, par. 122-2.1(a).) Should the petition not be dismissed pursuant to that section, it is to be docketed for further consideration. (Ill.Rev.Stat.1985, ch. 38, par. 122-2.1(b).) Only then need the court appoint counsel to represent an indigent defendant. (Ill.Rev.Stat.1985, ch. 38, par. 122-4.) Accordingly, any post-conviction petition must survive this threshold determination before counsel need be appointed.

We are initially cognizant that the defendant has put forth three reasons to support his belief that this statutory scheme is unconstitutional: (1) section 122-2.1 conflicts with Supreme Court Rule 651(c) (103 Ill.2d R. 651(c)), which provides for the appointment of counsel for the appeal of a post-conviction petition, thereby violating the doctrine of separation of powers; (2) denying counsel to indigent post-conviction petitioners violates due process of law; and (3) not allowing indigent petitioners to have aid of counsel in preparing a post-conviction petition violates equal protection.

In People v. Baugh (1985), 132 Ill.App.3d 713, 87 Ill.Dec. 598, 477 N.E.2d 724, however, this court held that section 122-2.1 withstood constitutional attack in the face of these three arguments. This court held that there was no conflict between section 122-2.1 and Supreme Court Rule 651(c), noting that the former involved post-conviction procedure at the trial level, while the latter concerned appellate procedure. We similarly found a rational basis for treating post-conviction petitions and appeals differently, and therefore concluded there was no deprivation of equal protection. Finally, this court determined in Baugh that due process is not denied by operation of section 122-2.1, as the procedure parallels Federal habeas corpus practices, and the State is not depriving an indigent petitioner of post-conviction relief where a meritorious claim is presented.

Baugh was consistently followed by the appellate courts in this State until People v. Mason (1986), 145 Ill.App.3d 218, 98 Ill.Dec. 849, 494 N.E.2d 1176. In Mason, the Fourth Division of the First District held that section 122-2.1 violated the constitutional mandate of separation of powers. The Mason court further found a violation of due process, ruling that indigent petitioners were being denied "meaningful access" to the courts for post-conviction remedies. (145 Ill.App.3d 218, 223-24, 98 Ill.Dec. 849, 853, 494 N.E.2d 1176, 1180.) Mason has subsequently been reaffirmed by that court in People v. Williams (1986), 146 Ill.App.3d 139, 99 Ill.Dec. 939, 496 N.E.2d 1031, and People v. Wilson (1986), 146 Ill.App.3d 567, 102 Ill.Dec. 192, 499 N.E.2d 972. We note, however, that Mason not only contradicts earlier decisions rendered in the First District (see People v. Porter (1986), 141 Ill.App.3d 208, 95 Ill.Dec. 574, 490 N.E.2d 47; People v. Ross (1985), 139 Ill.App.3d 674, 94 Ill.Dec. 260, 487 N.E.2d 1137), but it also diverges from decisions in this and other districts which have repeatedly upheld the constitutionality of section 122-2.1 (People v. O'Neal (1986), 148 Ill.App.3d 87, 101 Ill.Dec. 716, 499 N.E.2d 83; People v. Cooper (1986), 142 Ill.App.3d 223, 96 Ill.Dec. 536, 491 N.E.2d 815; People v. Brown (1986), 142 Ill.App.3d 139, 96 Ill.Dec. 440, 491 N.E.2d 486; People v. Swearingen (1986), 140 Ill.App.3d 93, 94 Ill.Dec. 498, 488 N.E.2d 324; People v. Alexander (1985), 136 Ill.App.3d 1047, 91 Ill.Dec. 553, 483 N.E.2d 1039). Although the defendant here asks us to reconsider Baugh in light of Mason, we reject the invitation to do so, and we specifically hold that Baugh remains the law in this district.

Still, defendant raises another point to support his contention that section 122-2.1 suffers from some infirmity. Defendant first notes that the Post-Conviction Hearing Act was amended in 1983 by Public Act 83-942 (1983 Ill.Laws 6200) to include section 122-8 (Ill.Rev.Stat.1985, ch. 38, par. 122-8) as well as section 122-2.1. Defendant then calls our attention to People v. Joseph (1986), 113 Ill.2d 36, 99 Ill.Dec. 120, 495 N.E.2d 501, in which our supreme court held that section 122-8 is an unconstitutional legislative enactment which attempted to govern an aspect of judicial procedure. Relying on the legislative history and debate surrounding passage of Public Act 83-942, defendant postulates that the General Assembly intended both sections 122-2.1 and 122-8 to be regarded as a single, inseverable package. He therefore concludes that, because section 122-8 has been declared unconstitutional, section 122-2.1 is invalid also.

It is true that when the provisions of an act which have been declared invalid cannot be severed from those which are considered valid, then the entire act must fall. (People ex rel. Peoria Civic Center v. Vonachen (1975), 62 Ill.2d 179, 340 N.E.2d 1.) Stated another way, the invalidity of one section of an act or law does not affect the validity of the remainder unless it appears the legislature would not have enacted the law without including the invalid portion. (People ex rel. Du Page County v. Smith (1961), 21 Ill.2d 572, 586, 173 N.E.2d 485, 493.) Our supreme court has established the following test to determine severability:

" 'If what remains after the invalid portion is stricken is complete in itself and capable of being executed wholly independently of that which is rejected, the invalid portion does not render the entire section unconstitutional unless it can be said that the General Assembly would not have passed the statute with the invalid portion eliminated.' " City of Carbondale v. Van Natta (1975), 61 Ill.2d 483, 490, 338 N.E.2d 19, 23-24, quoting from Livingston v. Ogilvie (1969), 43 Ill.2d 9, 23, 250 N.E.2d 138, 146.

Again, section 122-2.1 was added to the Post-Conviction Hearing Act by Public Act 83-942. Other sections of the Act were also amended to conform to the new procedure provided for in that section. (Ill.Rev.Stat.1985, ch. 38, pars. 122-1, 122-4, 122-5.) Another significant provision added by Public Act 83-942 was section 122-8, which stated:

"All proceedings under this Article shall be conducted and all petitions shall be considered by a judge who was not involved in the original proceeding which resulted in conviction." (Ill.Rev.Stat.1985, ch. 38, par. 122-8.)

In Joseph, the supreme court held that section 122-8 conflicted with Supreme Court Rule 21 (103 Ill.2d R. 21), which gives the chief judge of each circuit authority to enter general orders providing for the assignment of judges free from any express legislative limitations. (113 Ill.2d 36, 46, 99 Ill.Dec. 120, 495 N.E.2d 501, 505.) As such, the court declared section 122-8 unconstitutional for unduly encroaching upon an area of court administration.

Public Act 83-942 originally passed both houses of the Illinois General Assembly in identical form as House Bill 463 (83d Ill.Gen.Assem., House Bill 463, 1983 Sess.) and Senate Bill 151 (83d Ill.Gen.Assem., Senate Bill 151, 1983 Sess.). The purpose of the proposed legislation, according to legislative debate on the subject, was to ameliorate some of the burdens and costs associated with the filing of a frivolous post-conviction petition without diminishing a defendant's rights. To that end, a threshold standard was established, patterned after Federal post-conviction procedures, by which a meritless petition could be dismissed without the necessity of ordering a transcript or appointing counsel. An amendment was added to both House Bill 463 and Senate Bill 151 to provide that a separate judge, not involved with the original proceedings, would make this determination. Sponsors of the bill felt it would be "better" if a "different Judge" would consider whether or not a post-conviction petition was frivolous. 83d Ill.Gen.Assem., House Debates, May 19, 1983, at 130 (statement of Representative John Cullerton).

However, on September 23, 1983, Governor Thompson issued an amendatory veto of Senate Bill 151, recommending deletion of all language requiring that post-conviction proceedings should...