People v. Ford

• Decision Date: 11 September 1981
• Docket Number: No. 80-502,80-502
• Citation: 426 N.E.2d 340,55 Ill.Dec. 365,99 Ill.App.3d 973
• Parties: , 55 Ill.Dec. 365 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. William FORD, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 340

426 N.E.2d 340

99 Ill.App.3d 973, 55 Ill.Dec. 365

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. William FORD, Defendant-Appellant.

No. 80-502.

Appellate Court of Illinois, Third District.

Sept. 11, 1981.

Ted W. Dennis and James J. Elson, Canton, for defendant-appellant.

Thomas J. Homer, State's Atty., Lewistown, Gary F. Gnidovec, John X. Breslin, State's Attys., Appellate Service Commission, Ottawa, for plaintiff-appellee.

STOUDER, Justice.

The petitioner, William J. Ford, was convicted of indecent liberties with a child and attempt rape following a jury trial and sentenced to an indeterminate term of not less than 15 nor more than 25 years imprisonment on November 9, 1979. Dean Wilson, specially appointed counsel, represented the petitioner at trial. The petitioner, then represented by the Appellate Defender's Office, appealed, and this court vacated the attempt rape conviction and remanded the cause for resentencing. (People v. Ford (3rd Dist., 1980), 83 Ill.App.3d 57, 38 Ill.Dec. 281, 403 N.E.2d 512.) Meanwhile, the petitioner had filed a pro se postconviction petition alleging he was denied his right to effective assistance of counsel because of Wilson's incompetence. Following appointment of counsel, the State filed a motion to dismiss the petition summarily. The court granted the State's motion and offered the following reasons: the petition contained insufficient allegations to merit an evidentiary hearing; several of the allegations were barred by res judicata; and the allegations, if not waived or insufficient, failed to constitute incompetence of counsel. The petitioner now appeals from this order and presents two issues for review: whether the petitioner was denied effective assistance of counsel at the postconviction proceedings; and whether the court erred in summarily dismissing the postconviction petition.

The petitioner first argues that his postconviction counsel, Dan O'Bryant, rendered ineffective assistance of counsel by: failing to file an affidavit in accordance with Supreme Court Rule 651(c) (Ill.Rev.Stat.1979, ch. 110A, par. 651(c)); failing to amend the pro se petition; and failing to argue that the petitioner's claim of incompetency of trial counsel was not barred by res judicata.

Supreme Court Rule 651(c) provides in part that if notice of appeal is filed from the denial of the postconviction petition, the record must contain a showing made by a certificate of the petitioner's attorney that the attorney has consulted with the petitioner, has examined the record, and has amended the petition to ensure adequate representation of the petitioner's contentions. Compliance with Rule 651(c) need not be determined solely from a certificate, however. The law only requires the record to show that counsel has fulfilled these obligations. (People v. Drew (1st Dist., 1976), 36 Ill.App.3d 807, 345 N.E.2d 45.) Although counsel did not file such a certificate at the time the petitioner filed a notice of appeal, the State has since supplemented the record with counsel's affidavit. O'Bryant avers he visited the petitioner several times and spoke with him concerning amendments to the petition, but the petitioner refused to acquiesce to counsel's suggestions. Thus, the failure to amend the petition was not due to counsel's ineffectiveness, but resulted from the petitioner's obstinate choice. Moreover, counsel's failure to amend the petition does not constitute inadequate representation where the petitioner fails either to establish that such a failure resulted in the omission of a significant allegation or suggest in what manner the petition should have been amended. (People v. Dodd (1974), 58 Ill.2d 53, 317 N.E.2d 28.) In the case at bar, the petitioner points to no fatal omissions or corrections and suggests only changes in the petition's form.

As presented to the trial court, the petition adequately apprised the court of the substance of the petitioner's claims. Accordingly, O'Bryant's affidavit and the averments contained therein show an adequate discharge of his statutory duties and refute the petitioner's first two claims of incompetent postconviction counsel.

As for the petitioner's final allegation of postconviction incompetence, the record clearly shows that counsel did in fact argue at the hearing to dismiss the petition that res judicata was inapplicable. Accordingly, we find that the petitioner was not denied effective assistance of postconviction counsel.

The petitioner also contends that the court erred when it summarily dismissed his postconviction petition containing more than 20 claims of incompetency committed by his appointed trial counsel.

The Post-Conviction Hearing Act provides a supplemental remedy to redress errors at trial which amount to substantial denial of a petitioner's constitutional rights. The law is well established, however, that a postconviction petitioner is not entitled to an evidentiary hearing on his allegations as a matter of right. (People v. McGinnis (1st Dist., 1977), 51 Ill.App.3d 273, 9 Ill.Dec. 458, 366 N.E.2d 969.) Upon the State's motion to dismiss the petition, a court must scrutinize the sufficiency of the allegations and supporting documents to determine whether the allegations are sufficient, if true, to establish incompetent representation. (People v. Stepheny (1970), 46 Ill.2d 153, 263 N.E.2d 83.) The petitioner bears the burden of setting forth in what respect his constitutional rights were violated and support these allegations with affidavits, the record, or other evidence. Although absence of affidavits is not necessarily fatal to the petition, the allegations must stand uncontradicted and clearly be supported by the record. People v. Newberry (1973), 55 Ill.2d 74, 302 N.E.2d 34; People v. McGinnis (1st Dist., 1977), 51 Ill.App.3d 273, 9 Ill.Dec. 458, 366 N.E.2d 969.

The postconviction proceeding is a new proceeding for purposes of inquiry into the constitutional issues of the original conviction which have not already been adjudicated. Thus, direct appeal or the failure to appeal makes those issues which were raised or which could have been raised res judicata. There are, however, two well recognized exceptions to the doctrine of res judicata. First, where substantial constitutional errors were not contained within the record and thus were not before the reviewing court, they may be presented in a postconviction proceeding. Second, res judicata will not bar a claim of incompetence of counsel in a postconviction proceeding where the same attorney or the same firm who represented the petitioner at trial also represented the petitioner on appeal. The rationale for this exception is that it is unreasonable to expect appellate counsel to argue his own incompetency effectively. People v. Asley (1966), 34 Ill.2d 402, 216 N.E.2d 126.

The petitioner's request for postconviction relief advanced 23...