People v. Mason

• Decision Date: 22 May 1986
• Docket Number: No. 84-2802,84-2802
• Citation: 98 Ill.Dec. 849,145 Ill.App.3d 218,494 N.E.2d 1176
• Parties: , 98 Ill.Dec. 849 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Marva MASON a/k/a Linda Wells, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1176

494 N.E.2d 1176

145 Ill.App.3d 218, 98 Ill.Dec. 849

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Marva MASON a/k/a Linda Wells, Defendant-Appellant.

No. 84-2802.

Appellate Court of Illinois First District, Fourth Division.

May 22, 1986.

Steven Clark, Deputy Defender, Michael J. Pelletier, Asst. Appellate Defender, Office of the State Appellate Defender, Chicago, Debra R. Salinger and Barbara Kamm, of counsel, for defendant-appellant.

Richard M. Daley, State's Atty., County of Cook, Chicago, Joan S. Cherry, Paula M. Carstensen, and Jeffrey S. Ryan, Asst. State's Attys., of counsel, for plaintiff-appellee.

Justice JIGANTI delivered the opinion of the court:

This appeal arises from the summary dismissal of a pro se petition for post-conviction relief filed by the defendant, Marva Mason a/k/a Linda Wells, and the denial of her request for the appointment of counsel. The defendant on appeal challenges the constitutionality of section 122-2.1 of the Post-Conviction Hearing Act (Act) (Ill.Rev.Stat.1985, ch. 38, par. 122-2.1) which allows for the dismissal of post-conviction petitions which are deemed to be "frivolous" or "patently without merit" prior to the appointment of counsel. (See Ill.Rev.Stat.1985, ch. 38, par. 122-4.) The defendant also asserts on review that as the trial court failed to enter a written order specifying its findings of fact and conclusions of law within 30 days of the filing and docketing of the petition, as required under section 122-2.1, the dismissal must be vacated and the cause remanded. Finally, the defendant challenges the constitutionality of section 122-8 of the Act (Ill.Rev.Stat.1985, ch. 38, par. 122-8) which requires that the petition shall be considered by a judge who was not involved in the original proceeding which resulted in conviction.

The defendant had been convicted of attempted murder, armed robbery and aggravated battery (Ill.Rev.Stat.1985, ch. 38, pars. 8-4, 9-1, 18-2 and 12-4), and sentenced to concurrent terms of 25 to 50 years of imprisonment. On direct appeal, the conviction was affirmed by this court in an order issued pursuant to Supreme Court Rule 23 (87 Ill.2d R. 23; 100 Ill.App.3d 1196, 57 Ill.Dec. 809, 429 N.E.2d 926) and the Illinois Supreme Court denied leave to appeal. The defendant subsequently filed her pro se petition for post-conviction relief under the Post-Conviction Hearing Act (Ill.Rev.Stat.1985, ch. 38, par. 122-1 et seq. ) in which she claimed the ineffective assistance of counsel at both the trial and appellate court levels; the denial of a fair trial when the trial court denied defendant's motion for severance; the denial of due process and a fair trial by the systematic exclusion of blacks from the jury; and the sentence imposed was excessive. The defendant stated that she was indigent and requested that counsel be appointed to represent her and that a transcript of the trial proceedings be provided for her. The trial court dismissed the petition without a hearing or the appointment of counsel pursuant to section 122-2.1 of the Act. Ill.Rev.Stat.1985, ch. 38, par. 122-2.1.

Section 122-2.1 provides in relevant part:

"(a) Within 30 days after the filing and docketing of each petition, the court shall examine such petition and enter an order thereon pursuant to this Section. If the court determines the petition is frivolous or is patently without merit, it shall dismiss the petition in a written order, specifying the findings of fact and conclusions of law it made in reaching its decision. Such order of dismissal is a final judgment and shall be served upon the petitioner by certified mail within 10 days of its entry." Ill.Rev.Stat.1985, ch. 38, par. 122-2.1(a).

If the petition is not dismissed pursuant to section 122-2.1, the court will appoint counsel to represent the indigent defendant. See Ill.Rev.Stat.1985, ch. 38, par. 122-4.

The defendant asserts three grounds in support of her first contention that section 122-2.1 is unconstitutional: (1) that this section conflicts with Supreme Court Rule 651(c) (103 Ill.2d R. 651(c)), and therefore violates the doctrine of separation of powers; (2) that the denial of appointed counsel to indigent post-conviction petitioners violates the due process clause of the Federal and State constitutions; and, (3) that the denial of appointed counsel for indigent post-conviction petitioners and the provision of counsel as a matter of right for indigent and non-indigent direct appellants violates the requirements of equal protection guaranteed under the Federal and State constitutions.

We believe that the defendant is correct in her first assertion that section 122-2.1 is in direct conflict with Supreme Court Rule 651(c). Rule 651(c) requires the appointment of counsel at the appellate level for an indigent post-conviction petitioner. While the rule governs appellate procedure it additionally requires that the record in the appellate court affirmatively show that appointed counsel at the trial level in the post-conviction proceeding has consulted with the petitioner to ascertain his contentions of deprivations of constitutional rights, has examined the record of the trial proceedings and has made any amendments to the petition necessary for adequate presentation of the petitioner's contentions. (103 Ill.2d R. 651(c).) The purpose of this additional requirement at the trial level is to assure that the indigent petitioner has had an adequate opportunity to present his claims fairly in the context of the appellate process. (Ill.Ann.Stat., ch. 110A, par. 651, Historical and Practice Notes, at 537 (Smith-Hurd 1985); People v. Drew (1976), 36 Ill.App.3d 807, 345 N.E.2d 45.) It is evident that in a situation like the present case, where the trial court dismisses an indigent petitioner's pro se petition without the appointment of counsel, there can be no record made in the trial court showing that the indigent petitioner has had an adequate opportunity to present his claims of constitutional deprivation under the Act.

The State attempts to resolve this apparent conflict by asserting that the prescription of Rule 651(c) that the record show that appointed counsel has discharged certain duties at the trial level applies only after the petition has passed initial judicial scrutiny under section 122-2.1 thereby entitling the indigent petitioner to the appointment of counsel at the trial level. This reasoning is flawed. The Illinois Supreme Court in interpreting the scope of its rule has indicated that the right to counsel at the trial level is an indispensable element of the petitioner's right to the adequate presentation of a post-conviction petition. (People v. Brown (1972), 52 Ill.2d 227, 230, 287 N.E.2d 663; People v. Bennett (1980), 82 Ill.App.3d 596, 601, 38 Ill.Dec. 35, 403 N.E.2d 50.) The supreme court has not had the opportunity since the amendment adding section 122-2.1 in 1983 to consider this question. However, it is noteworthy that Rule 651(c) has been amended since the enactment of section 122-2.1 only in the respect of providing that appeals from post-conviction proceedings in death penalty cases go directly to the supreme court. (See 103 Ill.2d R. 651, Committee Comments.) While several appellate courts, beginning with the decision of People v. Baugh (1985), 132 Ill.App.3d 713, 87 Ill.Dec. 598, 477 N.E.2d 724, leave to appeal denied, 107 Ill.2d (43), support the State's assertion that these provisions do not conflict as they deal with the appointment of counsel for indigent petitioners at different stages of the post-conviction proceedings, based on our foregoing discussion we do not adopt this reasoning. See also People v. Porter (1986), 141 Ill.App.3d 208, 213-14, 95 Ill.Dec. 574, 490 N.E.2d 47; People v. Swearingen (1986), 140 Ill.App.3d 93, 95, 94 Ill.Dec. 498, 488 N.E.2d 324; People v. Ross (1985), 139 Ill.App.3d 674, 677-78, 94 Ill.Dec. 260, 487 N.E.2d 1137; People v. Baker (1985), 138 Ill.App.3d 638, 640, 93 Ill.Dec. 230, 486 N.E.2d 331.

Article VI, section 1 of the 1970 Illinois Constitution vests judicial power in the supreme court, the appellate courts and the circuit courts. (Ill.Const.1970, art. VI, sec. 1.) However, the legislature has the power to enact laws governing judicial practice, provided it does not unduly infringe upon the inherent powers of the judiciary. (People v. Cox (1980), 82 Ill.2d 268, 274, 45 Ill.Dec. 190, 412 N.E.2d 541.) Where a rule on a matter within the supreme court's inherent judicial authority and a statute on the same subject conflict, the rule will prevail. (82 Ill.2d 268, 274, 45 Ill.Dec. 190, 412 N.E.2d 541.) Accordingly, as section 122-2.1 conflicts with Rule 651(c), section 122-2.1 is an unconstitutional violation of the State constitution's mandate of the separation of powers.

Much of the preceding discussion is equally relevant to our consideration of the question of whether due process requires the State to provide the assistance of counsel to indigent petitioners at the trial level. We find merit to the defendant's contention that section 122-2.1 violates due process by denying counsel to indigent post-conviction petitioners who have not initially made out a legally sufficient petition. Defendant argues that the appointment of counsel at the trial level is necessary for meaningful review of the defendant's post-conviction appeal. Under the procedures of the Act, an indigent petitioner is entitled to the appointment of counsel only if the trial court finds that his claims are not frivolous and patently without merit. Once counsel has been appointed in such instances, the petitioner, through his appointed counsel, can supplement the petition with additional constitutional claims. (Ill.Rev.Stat.1985, ch. 38, par. 122-5.) If a petition is found to be frivolous and patently without merit, the petition will be dismissed without the appointment of counsel and the petitioner is foreclosed from any opportunity to...