People v. Nicholls

• Citation: 281 N.E.2d 873,51 Ill.2d 244
• Decision Date: 30 March 1972
• Docket Number: No. 44271,44271
• Parties: The PEOPLE of the State of Illinois, Appellee, v. Ralph NICHOLLS, a/k/a Ernest Ralph Beasley, Appellant. *
• Court: Supreme Court of Illinois

Page 873

281 N.E.2d 873

51 Ill.2d 244

The PEOPLE of the State of Illinois, Appellee, v. Ralph NICHOLLS, a/k/a Ernest Ralph Beasley, Appellant.

^*

No. 44271.

Supreme Court of Illinois.

March 30, 1972.

Theodore A. Gottfried, District Defender, Illinois Defender Project, Ottawa (Bruce Stratton, of counsel), for appellant.

William J. Scott, Atty. Gen., Springfield, and James N. De Wulf, State's Atty., Rock Island (Fred G. Leach and Thomas J. Immel, Asst. Attys. Gen., and F. Stewart Merdian, Asst. State's Atty., of counsel), for the People.

UNDERWOOD, Chief Justice.

In a 1952 Rock Island County circuit court bench trial petitioner, Ralph Nicholls, also known as Ernest Ralph Beasley, was found guilty of armed robbery and sentenced to a term of 50 to 60 years imprisonment.

Petitioner's Pro se petition under the Post-Conviction Hearing Act (Ill.Rev.Stat.1963, ch. 38, par. 826 et seq.) was dismissed in 1963 on the grounds that the statute of limitations had expired in 1957. While appointment of counsel had been requested in that petition, counsel had not been appointed. No appeal was taken from that dismissal although there is some intimation in the petition with which we are here concerned that a writ of error had been sought in 1957 and denied. Likewise, there is a nonspecific reference to a circuit court denial of a 1961 section 72, Ill.Rev.Stat., c. 110, § 72, petition.

On December 31, 1970, some 13 years after the expiration of the statute of limitations (Ill.Rev.Stat.1963, ch. 38, par. 826), petitioner filed a second Pro se post-conviction petition in which he alleged that he was then detained in the psychiatric division of the Illinois State Penitentiary, that he was insane at the time of his trial, that there was no determination of probable cause made at his preliminary hearing, that the indictment was obtained by the use of false evidence, that he was not advised of the consequences of his waiver of a jury trial, that pretrial publicity deprived him of a fair trial, and that he had incompetent trial counsel. He also requested that counsel be appointed. This second petition was dismissed on the State's motion without the appointment of counsel on the basis that the dismissal of his prior post-conviction petition was Res judicata. This appeal is concerned with that dismissal.

Although 'the prior denials of the post-conviction petitions are Res judicata of all claims raised therein and of all constitutional claims which could have been raised * * *' (People v. Holland, 33 Ill.2d 246, 248, 211 N.E.2d 265, 266), this court has not hesitated to relax the application of that general rule where fundamental fairness so requires. (People v. Polansky,39 Ill.2d 84, 233 N.E.2d 374.) We have also stated that the '(d)ismissal of insufficient Pro se petitions without appointment of counsel, where properly requested, thwarts the legislative purpose and creates due process problems (citations omitted) in attmepting to thereafter apply Res judicata and waiver principles predicated upon the original proceeding in which neither statutory nor due process requirements were met.' Polansky, p. 87, 233 N.E.2d p. 376.

Here, as in Polansky, the petitioner's original post-conviction petition was erroneously dismissed without providing counsel as requested. Petitioner alleges that he was insane at the time of the trial and is being detained in the psychiatric division of the State penitentiary. Such allegations indicate the possibility of petitioner's continuing insanity which could have prevented the running of the statute of limitations in the original...