People v. Ross

• Decision Date: 30 December 1985
• Docket Number: No. 84-2252,84-2252
• Citation: 139 Ill.App.3d 674,487 N.E.2d 1137,94 Ill.Dec. 260
• Parties: , 94 Ill.Dec. 260 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Jerome ROSS, a/k/a Donald Baske, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1137

487 N.E.2d 1137

139 Ill.App.3d 674, 94 Ill.Dec. 260

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Jerome ROSS, a/k/a Donald Baske, Defendant-Appellant.

No. 84-2252.

Appellate Court of Illinois First District, First Division.

Dec. 30, 1985.

Steven Clark, Michael J. Pelletier, Chicago, for defendant-appellant.

Richard M. Daley, (Joan S. Cherry, Inge Fryklund, Joel Leighton, of counsel), Chicago, for plaintiff-appellee.

BUCKLEY, Presiding Justice:

Defendant Jerome Ross, also known as Donald Baske, appeals from the circuit court's dismissal of his pro se petition for post-conviction relief filed pursuant to section 122-4 of the Code of Criminal Procedure of 1963. (Ill.Rev.Stat.1983, ch. 38, par. 122-4.) For the reasons set forth below, we affirm the dismissal.

Defendant was convicted by a jury of burglary (Ill.Rev.Stat.1983, ch. 38, par. 19-1) and sentenced to an extended term of 14 years in the Illinois Department of Corrections. Defendant's conviction and sentence were affirmed by this court on direct appeal (People v. Baske (1984), 122 Ill.App.3d 1155, 86 Ill.Dec. 300, 475 N.E.2d 297) in an unpublished order pursuant to Supreme Court Rule 23 (87 Ill.2d R. 23). On December 12, 1983, defendant filed his pro se post-conviction petition alleging he was denied his right to due process of law because the judge who imposed the extended term sentence of 14 years failed "to explain the extended term to him, the consequences, and inform him to whether or not he qualified to be sentenced to an extended term." Defendant also stated in his petition that he was indigent and requested that counsel be appointed to represent him.

On February 16, 1983, the trial court dismissed defendant's petition as without merit pursuant to section 122-2.1 of the Code of Criminal Procedure of 1963. (Ill.Rev.Stat.1984 Supp., ch. 38, par. 122-2.1.) Defendant appeals from the dismissal of his petition. In this appeal, defendant does not challenge the trial court's conclusion that his petition was without merit. Rather, he argues only that section 122-2.1 is unconstitutional because it allows the dismissal of post-conviction petitions which are deemed to be without merit prior to the appointment of counsel. Defendant has advanced the following three grounds in support of his argument that section 122-2.1 is unconstitutional: (1) section 122-2.1 conflicts with Supreme Court Rule 651(c) (87 Ill.2d R. 651(c) ) and, therefore, violates the separation of powers doctrine; (2) section 122-2.1 violates the equal protection doctrine; and (3) section 122-2.1 fails to comport with due process requirements.

I.

We will initially address defendant's argument that section 122-2.1 conflicts with Supreme Court Rule 651(c) (87 Ill.2d R. 651(c)) and, therefore, violates the constitution's mandate of a separation of powers. Defendant asserts that Rule 651(c) indicates that counsel shall be provided for all indigent post-conviction petitioners, while section 122-2.1 permits the trial court to dismiss certain petitions summarily prior to the appointment of counsel.

We find no conflict existing between the two provisions. Section 122-2.1 establishes the following review procedure for post-conviction petitions:

"Dismissal order--Docketing--Examination of file of conviction proceedings.

(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.

(b) If the petition is not dismissed pursuant to this Section, the court shall order the petition to be docketed for further consideration in accordance with Sections 122-4 through 122-6." (Ill.Rev.Stat.1984 Supp., ch. 38, par. 122-2.1(a), (b).)

Rule 651(c) provides as follows:

"Appeals in Post-Conviction Proceedings.

(c) Record for Indigents; Appointment of Counsel. Upon the timely filing of a notice of appeal in a post-conviction proceeding, if the trial court determines that the petitioner is indigent, it shall order that a transcript of the record of the post-conviction proceedings, including a transcript of the evidence, if any, be prepared and filed with the clerk of the court to which the appeal is taken and shall appoint counsel on appeal, both without cost to the petitioner. The record filed in that court shall contain a showing, which may be made by the certificate of petitioner's attorney, that the attorney has consulted with petitioner either by mail or in person to ascertain his contentions of deprivation of constitutional right, has examined the record of the proceedings at the trial, and has made any amendments to the petitions filed pro se that are necessary for an adequate presentation of petitioner's contentions." (87 Ill.2d R. 651(c).)

It is apparent that the above provisions are intended to deal with different stages of the post-conviction process; section 122-2.1 pertains to the trial level, while Rule 651(c) concerns appellate procedure. Contrary to defendant's assertion, the language of Rule 651(c) does not require that counsel is to be provided for all indigent post-conviction petitioners at the trial level.

The foregoing distinction between the two provisions in question was recently recognized by this court in People v. Baugh (1985), 132 Ill.App.3d 713, 87 Ill.Dec. 598, 477 N.E.2d 724, where we rejected an argument virtually identical to the one now raised here by defendant. There, it was specifically held that the legislature, in enacting section 122-2.1, did not infringe upon the powers of the judiciary because section 122-2.1 deals with post-conviction procedure at the trial level and Rule 651(c) is addressed only to appellate procedure. We further reasoned:

"The constitutional right to counsel, which is absolute at trial, has not been found to apply to post-conviction proceedings. (Rodriguez v. United States (1969), 395 U.S. 327, 23 L.Ed.2d 340, 89 S.Ct. 1715.) Indeed, this court has stated in reference to section 122-2.1 that 'the right to counsel at post-conviction proceedings is a matter of legislative grace and favor which may be altered by the legislature at will.' People v. Ward (1984), 124 Ill.App.3d 974, 978, , 464 N.E.2d 1144, 1147.

Section 122-2.1 does not operate to deny counsel to indigents wishing to institute post-conviction proceedings. Instead, it is an attempt to screen out the cases that have no merit to them at an early stage, and the requirement in subsection (a) that the trial court make a written order setting forth its findings in dismissing the petition produces a record for the counsel provided in Rule 651 to use to appeal the dismissal. If a petition is found to have merit under section 122-2.1, counsel will be appointed pursuant to section 122-4." 132 Ill.App.3d 713, 715-16, 87 Ill.Dec. 598, 477 N.E.2d 724.

We note that defendant places much reliance on Commonwealth of Pennsylvania v. Bostic (1977), 251 Pa.Super. 224, 380 A.2d 459. We have reviewed that case and find it readily distinguishable from the present case. In Bostic, the reviewing court held that a rule of the Pennsylvania Supreme Court prevailed over a conflicting legislative provision which provides that counsel need not be appointed to indigent petitioners in post-conviction proceedings if the court determines that the post-conviction petition is without merit. The court found that this provision was in direct conflict with Rule 1503 of the Pennsylvania Rules of Criminal Procedure which requires that when a petitioner in a post-conviction proceeding is without counsel and satisfies the court that he is unable to procure counsel, the court must appoint counsel to represent him. ¹ Hence, unlike our Supreme Court Rule 651(c), Rule 1503 clearly applies to post-conviction proceedings at the trial level. In light of this distinction, we find Bostic unpersuasive analogy.

We conclude that section 122-2.1 does not conflict with Rule 651(c) and, therefore, does not violate the separation of powers doctrine.

II.

We next consider defendant's equal protection challenge to section 122-2.1. Defendant contends that he was denied equal protection by section 122-2.1 because his petition was dismissed prior to the appointment of counsel, while he would have received assistance of counsel automatically as an indigent direct appellant pursuant to Supreme Court Rule 607(a). (87 Ill.2d R. 607(a).) Defendant reasons that those pursuing direct appeals and post-conviction petitions are similarly situated, and concludes that the refusal to automatically appoint counsel for petitioners constitutes an "unreasoned" distinction between two similarly situated classes of persons.

The equal protection clause of the fourteenth amendment only guarantees like treatment to persons similarly situated. (Rostker v. Goldberg (1981), 453 U.S. 57, 101 S.Ct. 2646, 69 L.Ed.2d 478.) Contrary to defendant's assertion, post-conviction petitioners and direct appellants are not similarly situated. When initiating a post-conviction action, a petitioner is merely required to submit a petition setting forth any facts that may indicate a substantial denial of his constitutional rights. (Ill.Rev.Stat.1983, ch. 38, par. 122-2.) The petitioner need not even articulate the correct legal theory supporting his claim, providing the petition alleges facts indicating a constitutional deprivation. (People v. Hudson (1978), 65 Ill.App.3d 422, 22 Ill.Dec. 326, 382 N.E.2d 646.) The petition is subject to dismissal pursuant to section 122-2.1 only if the factual allegations reveal that the petitioner's claims utterly lack merit. (Ill.Rev.Stat.1984 Supp., ch. 38, par. 122-2.1(a).) On...