People v. Sherman
| Decision Date | 24 November 1981 |
| Docket Number | No. 81-285,81-285 |
| Citation | 428 N.E.2d 1186,101 Ill.App.3d 1131,57 Ill.Dec. 506 |
| Parties | , 57 Ill.Dec. 506 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Gerald Allan SHERMAN, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
G. Joseph Weller, Asst. State Appellate Defender, Robert Agostinelli, Deputy State Appellate Defender, Ottawa, for defendant-appellant.
Bruce W. Black, State's Atty., Pekin, Rita F. Kennedy, John X. Breslin, State's Attys., Appellate Service Com'n, Ottawa, for plaintiff-appellee.
The defendant, Gerald Allan Sherman, appeals from the order of the Circuit Court of Tazewell County dismissing his petition for post-conviction relief without his presence and without an evidentiary hearing.
In 1978, the defendant was found guilty of robbery and theft following a jury trial. He subsequently received a concurrent 5 year term of imprisonment for each offense. He directly appealed, and this court affirmed the robbery conviction, vacated the theft conviction, and affirmed the sentencing order. (People v. Sherman (3rd Dist., 1980), 87 Ill.App.3d 937, 42 Ill.Dec. 871, 409 N.E.2d 486.) Thereafter, he filed this instant petition for post-conviction relief, claiming that his retained trial counsel, Robert H. Jones, had rendered ineffective assistance of counsel and that the record did not contain the alleged error. The defendant also asked the court to appoint counsel who would more competently present the alleged constitutional violation in an amended petition. After appointing two attorneys who were forced to withdraw because of conflicts of interest, the court finally appointed attorney Michael Bush.
Contrary to the defendant's desires, though, Bush failed to file an amended post-conviction petition. Instead, he moved to withdraw, saying he was unable to discover a basis for relief. In his verified motion, Bush maintained that (1) his motion was not intended to prejudice the defendant in any future post-conviction proceeding and that (2) the motion should not be interpreted by the court to mean that no basis for post-conviction relief existed, but only that the defendant's appointed counsel failed to discern any basis to support the alleged constitutional violation. The record contains no reference showing that Bush notified his client of his decision to withdraw.
Without the defendant being present, the court heard Bush's motion to withdraw. Bush first said he thoroughly reviewed the entire record of the defendant's trial, having specifically focused on the defendant's allegation that his retained counsel had rendered ineffective assistance. He then wrote the defendant pursuant to Supreme Court Rule 651(c) (Ill.Rev.Stat.1979, ch. 110A, par. 651(c)) and asked him to detail the basis of his claim. In his reply, the defendant failed to reveal any specific basis amounting to ineffective assistance and instead asserted that he had been denied due process of law. Bush assumed from this letter that the defendant no longer wished to base his post-conviction petition on his retained counsel's alleged ineffectiveness. Nevertheless, Bush researched the issue. He concluded that, because the standard for establishing ineffective assistance of retained counsel was that the representation must be so ineffective so as to amount to no representation at all, the defendant could not sustain that burden of proof. With respect to the defendant's claimed violation of due process, Bush said he also researched that issue and concluded that, in order for the defendant to prevail, he would have to prove that no rational jury could have found him guilty beyond a reasonable doubt. In Bush's opinion, the prosecution submitted sufficient proof of all elements of the offense as charged, leaving only a question of credibility among the witnesses. Bush believed the defendant could not sustain this burden in light of the evidence. Bush made no mention of whether he explored outside the record for possible constitutional errors, as the defendant claimed in his petition. Following Bush's statement, the prosecution orally moved to dismiss the defendant's petition, stating that in light of the facts...
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People v. Jackson
...See People v. Shortridge, 2012 IL App (4th) 100663, ¶ 15, 358 Ill.Dec. 10, 964 N.E.2d 679 ; People v. Sherman, 101 Ill.App.3d 1131, 1133–34, 57 Ill.Dec. 506, 428 N.E.2d 1186 (1981). If appointed postconviction counsel believes that a client's postconviction petition is frivolous and patentl......
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Boulanger v. United States
...pushing her into a garage" is sufficient. See People v. Sherman, 409 N.E.2d 486, 489 (Ill. App. Ct. 1980), vacated on other grounds, 428 N.E.2d 1186 (1981). The court then used that illustration to support its own construction of § 636:1. Thus, the "push" or "shove," as discussed, constitut......
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People v. Elken
...that defendant's contentions had no merit. That is the key distinction that warrants reversal.¶ 33 In People v. Sherman, 101 Ill.App.3d 1131, 57 Ill.Dec. 506, 428 N.E.2d 1186 (1981), the defendant filed a postconviction petition that the circuit court advanced to the second stage. Counsel w......
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People v. Jones
...him of any representation at the hearing which ultimately ended in the dismissal of his petition." People v. Sherman (1981), 101 Ill.App.3d 1131, 1133, 57 Ill.Dec. 506, 428 N.E.2d 1186. It is the State's contention that defendant's claim of inadequate assistance of counsel is without merit ......