People v. Partee
| Decision Date | 08 July 1980 |
| Docket Number | No. 79-90,79-90 |
| Parties | , 41 Ill.Dec. 23 The PEOPLE of the State of Illinois, Plaintiff-Respondent-Appellee, v. Ellis PARTEE, Defendant-Petitioner-Appellant. |
| Court | United States Appellate Court of Illinois |
Kenneth A. Grnacek, Joliet, for defendant-petitioner-appellant.
Edward F. Petka, State's Atty., Joliet, Kenneth A. Wilhelm, John X. Breslin, State's Attorneys Appellate Service Commission, Ottawa, for plaintiff-respondent-appellee.
Defendant Ellis Partee appeals from the dismissal of his petition under the Post-Conviction Hearing Act (Ill.Rev.Stat.1979, ch. 38, par. 122-1 et seq.).
Partee was convicted of two separate armed robberies following jury trials and received two concurrent sentences of 8 to 15 years imprisonment. On direct appeal this court affirmed the convictions and sentences, rejecting defendant's sole argument, that the sentences were excessive. People v. Partee (3d Dist. 1975), 29 Ill.App.3d 423, 331 N.E.2d 111.
Subsequently, on November 9, 1976, defendant filed in the trial court a pro se post-conviction petition along with a motion for appointment of counsel and an affidavit in support of the motion. The petition alleged that appointed counsel on direct appeal was incompetent; that, over defendant's objections, only his sentence was appealed, and that various errors had been committed at trial. The court appointed Attorney Charles Hahn to represent defendant in connection with his post-conviction petition. After reading the record and consulting with defendant, Hahn filed a motion to withdraw the pro se post-conviction petition without prejudice on December 27, 1976. In a letter to defendant dated the following day, Hahn told defendant the motion was filed as agreed. The letter also indicated Hahn's intention to investigate the matter further. On December 30, 1976, the motion was allowed.
At this point the record becomes rather confusing. On July 5, 1977, a letter from defendant to Hahn dated January 24, 1977, was filed in the trial court along with materials concerning a federal civil suit defendant had brought against officials of the Pontiac Correctional Center under 42 U.S.C. § 1983. The suit involved alleged mistreatment of defendant at the prison. In the letter defendant stated he was sending the material so that Hahn could "get an understanding of * * * what I need help with."
The next item in the record is the following entry in the docket sheet dated February 2, 1978:
On February 6, 1978, more materials concerning defendant's federal civil suit against correctional officials were filed. A docket sheet entry of the same date indicates that the letter and papers captioned "In the U.S. District Court" were returned to defendant with the suggestion that he forward them to that court.
On May 4, 1978, a letter from defendant to a judge of the circuit court was filed. The letter requested action on defendant's petitions under the Post-Conviction Hearing Act and for habeas corpus. Shortly thereafter a hearing was conducted. Hahn appeared on behalf of defendant who was not present. At the hearing the trial judge described the letter he received from defendant seeking action on his petitions. The court expressed some confusion about the February 2, 1978, docket sheet entry indicating that a petition was filed, and that Hahn was appointed to represent defendant. Said the court:
"I don't know of anything that was pending except that I must have had something from (defendant) to bring the matter up."
Hahn informed the court that he wrote defendant a letter on February 28, 1978, asking him to explain what action he wanted taken. According to Hahn, defendant's letter in reply had nothing to do with the petition for post-conviction relief. Said Hahn:
"All it said was that he knew I had withdrawn it without prejudice as per our agreement * * * ; because I explained to him that a post-conviction couldn't give him relief from incompetency of his public defender on appellate level * * *."
The court indicated it had no record of a petition for habeas corpus or a petition under the Post-Conviction Hearing Act other than the one that had been withdrawn. Hahn replied that he did not know of any other post-conviction petition. Shortly thereafter the following colloquy occurred:
After Hahn described the original pro se petition, the court stated:
"(I)t is clear to me that (defendant) simply doesn't have anything to raise with this court."
The court then terminated Hahn's appointment and ordered "the pending post-conviction petition" dismissed without prejudice.
On June 13, 1978, defendant filed another pro se petition under the Post-Conviction Hearing Act. It referred to the first petition withdrawn without prejudice and to defendant's repeated requests to the court to reinstate the petition "along the lines appointed counsel had suggested," which requests resulted in the second dismissal without prejudice. It incorporated the allegations of the first petition, alleged incompetence of appointed counsel on direct appeal, and requested the appointment of Attorney Lawrence Begun. The court directed the State to find out if Begun would accept the appointment. The court held a hearing on June 28, 1978, at which only the State was represented. Assistant State's Attorney Badger informed the court that Begun said he represented defendant in a federal civil suit but did not wish to accept the appointment because he did not practice criminal law. The court asked Badger if the new petition set forth any grounds for relief, and she replied:
The court then ordered the petition dismissed with prejudice, finding that:
"Ellis Partee has been given sufficient opportunity and legal counsel for the purpose of finding and alleging grounds for relief under post-conviction and has not done so."
In his appeal from that order, defendant makes several arguments, but we need consider only one. He contends he was denied his statutory right to the assistance of counsel with his most recent post-conviction petition. We agree.
Section 122-4 of the Code of Criminal Procedure of 1963, provides, in part:
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People v. Mason
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