People v. Porter, 84-1800

• Decision Date: 18 February 1986
• Docket Number: No. 84-1800,84-1800
• Citation: 95 Ill.Dec. 574,490 N.E.2d 47,141 Ill.App.3d 208
• Parties: , 95 Ill.Dec. 574 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Aaron PORTER, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 47

490 N.E.2d 47

141 Ill.App.3d 208, 95 Ill.Dec. 574

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Aaron PORTER, Defendant-Appellant.

No. 84-1800.

Appellate Court of Illinois First District, Second Division.

Feb. 18, 1986.

Steven Clark, Deputy Defender and Barbara Kamm, Asst. Appellate Defender, Chicago, for defendant-appellant.

Richard M. Daley, State's Atty. of Cook County (Joan S.S. Cherry, Peter D. Fischer and Gustavo Munoz, Asst. State's Attys., of counsel), for plaintiff-appellee.

HARTMAN, Justice:

Defendant, convicted by a jury of attempted murder, two counts of aggravated battery and armed violence (Ill.Rev.Stat.1979, ch. 38, pars. 8-4, 12-4(a), 12-4(b)(1), 33A-2), was sentenced to two concurrent 20-year terms of imprisonment for attempted murder and armed violence. Pursuant to Supreme Court Rule 23 (87 Ill.2d R. 23) his convictions were affirmed (People v. Goodman (Porter) (1982), 108 Ill.App.3d 1209, 68 Ill.Dec. 583, 446 N.E.2d 317) after this court granted leave to the Cook County public defender to withdraw as counsel on appeal pursuant to Anders v. California (1967), 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493.

On July 12, 1984, defendant pro se filed a petition for post-conviction relief, claiming: misidentification by the complaining witness; improper jury instructions on murder were given; a Bruton violation (Bruton v. United States (1968), 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476); prosecutorial misconduct; and ineffective assistance of appellate counsel. In addition, he filed an affidavit in forma pauperis and requested that counsel be appointed to represent him on his petition.

On June 19, 1984, the following proceedings took place in the circuit court:

"THE CLERK: Aaron Porter.

"THE COURT: This is a P.C. also. And what the Court will do is to ask the Public Defender to take a look at this P.C. The Court will pass this matter at this time.

"(WHEREUPON, further proceedings in the above-entitled cause were passed, the regular call was heard, after which the following proceedings in the above-entitled cause were had, to-wit:)

"THE CLERK: Aaron Porter and Donald Price.

"THE COURT: All right. The Post Conviction Petitions of Aaron Porter and Donald Price will be dismissed."

The memorandum of court orders (half-sheet) stated that on June 19, 1984, the parties were present and the post-conviction petition was dismissed. No mention appears in the record of any participation by the public defender in the proceedings.

I.

Defendant contends first that he was denied the effective assistance of counsel on his post-conviction petition. He had requested and was appointed counsel, who did not comply with the provisions of Supreme Court Rule 651(c) (87 Ill.2d R. 651(c)) in that no showing was made in the post-conviction petition that the attorney had consulted with defendant either by mail or in person to ascertain his contentions of deprivation of constitutional rights, nor had he examined the record of the proceedings at the trial or made any amendments to the petitions filed pro se that may have been necessary for an adequate presentation of defendant's contentions.

Section 122-2.1 of the Code of Criminal Procedure of 1963 (Ill.Rev.Stat.1983, Supp.1984, ch. 38, par. 122-2.1(a)) ("Code") provides in relevant part that the court shall examine the petition within 30 days of its filing and docketing. If the court finds the petition to be frivolous or patently without merit, the court shall dismiss the petition in a written order, specifying the findings of fact and conclusions of law it made in reaching its decision. The court will appoint counsel to represent defendant only when a petition is not dismissed pursuant to section 122-2.1.

Nothing in the record reveals that the circuit court appointed the public defender to represent defendant, nor that the public defender in fact examined defendant's petition. There is no showing that he participated in the court proceedings in any way. Nor did he identify himself on record as attorney for defendant. Counsel's silence at the hearing is not indicative of his failure to represent defendant effectively, as defendant contends; rather, his lack of interaction is attributable only to the fact that he was never appointed by the court to represent defendant, and that under the provisions of the Code the circuit court dismissed defendant's petition after determining that it was frivolous. Under these circumstances, a claim of ineffective assistance of counsel is without foundation.

II.

Defendant next contends that the circuit court erred in summarily dismissing his post-conviction petition which alleged the denial of his constitutional right to the effective assistance of appellate counsel and that the court erred in failing to enter a written order specifying the findings of fact and conclusions of law for the dismissal as is required by section 122-2.1.

Appointed counsel is not obliged to brief every conceivable issue on appeal; it is not incompetence for counsel to refrain from raising those issues which, in his judgment, are without merit unless his appraisal of the merits is patently wrong. (People v. Barnard (1984), 104 Ill.2d 218, 231, 83 Ill.Dec. 585, 470 N.E.2d 1005; People v. Frank (1971), 48 Ill.2d 500, 505, 272 N.E.2d 25.) Here, defendant's appointed appellate counsel found, upon review of the trial record, that there were no arguable issues present and, pursuant to Anders v. California, sought to withdraw as counsel. He filed a brief in support of that motion, serving copies thereof upon defendant who then responded and raised additional points in support of his appeal. After review of the record, counsel's brief and defendant's own arguments, this court in the initial appeal found no issues of arguable merit and allowed the motion.

Implicit in our previous finding that no arguable issues were present in defendant's appeal was the conclusion that an appeal would have been frivolous and that defendant's appellate counsel properly declined to appeal defendant's case. The circuit court correctly concluded from the foregoing facts that defendant's claim of ineffective assistance of counsel on appeal was without merit.

Defendant insists that the circuit court erred in failing to enter a written order specifying its findings of fact and conclusions of law for the dismissal of his petition in compliance with section 122-2.1 of the Code which provides, in relevant part, that "[i]f 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." Ill.Rev.Stat.1983, Supp.1984, ch. 38, par. 122-2.1(a).

Generally, the word "shall" is indicative of a mandatory legislative intent; however, a statute may be interpreted as permissive, depending upon the context in which it is found and upon discernible statutory purposes. (People v. Singleton (1984), 103 Ill.2d 339, 82 Ill.Dec. 666, 469 N.E.2d 200.) In People v. Davis (1982), 93 Ill.2d 155, 162, 66 Ill.Dec. 294, 442 N.E.2d 855, our supreme court addressed the issue of whether a statute (Ill.Rev.Stat.1983, ch. 38, par. 1005-4-1(c)), providing that the trial court "shall" specify its reasons for imposing a particular sentence, established a mandatory requirement upon the trial court to do so. The supreme court found that, since the pronouncement of sentence was at the heart of the judicial function, the legislature was without authority to attempt to dictate to the circuit court the actual contents of its pronouncement. The supreme court noted that constitutional principles weighed in favor of interpretations for statutes which give directions to the courts as permissive where the principles of separation of powers required an unrestrained exercise of judicial discretion. See People v. Hicks (1984), 101 Ill.2d 366, 78 Ill.Dec. 354, 462 N.E.2d 473; People v. Flores (1984), 104 Ill.2d 40, 83 Ill.Dec. 349, 470 N.E.2d 307. In the instant case, to interpret section 122-2.1(a) of the Code as mandatory would unconstitutionally intrude upon the circuit court's exercise of its judicial discretion, dictating to that court the requisite contents of its pronouncement. The intent of the legislature cannot be read so as to require the court to issue a written order setting forth its findings of fact and conclusions of law for every post-conviction petition received, no matter how frivolous. (People v. Cox (1985), 136 Ill.App.3d 623, 627-28, 91 Ill.Dec. 140, 483 N.E.2d 422.) The Code instead, must be construed as permissive, rather than mandatory, and directory in nature. It was within the circuit court's discretion, therefore, not to enter written reasons in coming to its determination in the present case. People v. Cox.

III.

Defendant's next contention is that section 122-2.1 of the Code, which allows for the dismissal of petitions deemed to be frivolous without benefit of counsel, conflicts with Supreme Court Rule 651(c) (87 Ill.2d R. 651(c)), which requires that counsel be appointed, and thus the statute is unconstitutional as a violation of the doctrine of separation of powers.

Section 122-2.1 requires a court to examine the post-conviction petition that has been submitted and, if the court determines that the petition is frivolous or is patently without merit, it need not appoint counsel, but will dismiss such petition. Supreme Court Rule 651(c) provides that when an indigent petitioner files a notice of appeal in a post-conviction proceeding, the court shall order a transcript of the post-conviction proceedings to be prepared and shall appoint counsel on appeal. These two provisions deal with appointment of counsel for indigent petitions at different stages of the post-conviction proceedings. In People v. Baugh (1985), 132 Ill.App.3d 713, 87 Ill.Dec. 598, 477 N.E.2d 724, appeal denied (1985), 107 Ill.2d (43), the appellate court...