PETITION FOR WRIT OF ERROR under Rule 65-1.
MR. JUSTICE SCHAEFER DELIVERED THE OPINION OF THE COURT: Rehearing denied November 27, 1967.
This is the third time that this court has considered this case. What has gone before must be stated, to explain how it happens that the case is before this court again, and why we dispose of it as we do.
On September 4, 1946, William Heirens, hereafter defendant, who was represented by retained counsel, pleaded guilty to three charges of murder and to 26 additional charges of burglaries, robberies and assaults. He was sentenced to the penitentiary for life on each of the murder indictments, the sentences to run consecutively. Statutory sentences were imposed on the other indictments, which ran concurrently with each other, but consecutively to the sentences on the charges of murder. On July 8, 1952, the defendant filed a petition seeking relief under the Post-Conviction Hearing Act. (Ill. Rev. Stat. 1951, chap. 38, pars. 826-832.) A hearing was had, and judgment was entered denying the relief sought. On writ of error (No. 33165) to review that judgment, this court appointed Calvin Sawyier and Arthur R. Seder as amici curiae, in addition to the attorney who appeared for the defendant, and directed them to file a brief on behalf of the defendant. In September of 1954, this court affirmed the judgment. (4 Ill.2d 131.) The Supreme Court of the United States denied certiorari. 349 U.S. 947, 99 L.Ed. 1273.
In November of 1963, the defendant filed a petition for a writ of error under our Rule 65-1 (Ill. Rev. Stat. 1963, chap. 110, par. 101.65-1), which provided for delayed discretionary review in certain cases. (See People v. Griffin, 9 Ill.2d 164; People v. Johnson, 15 Ill.2d 244, cert. denied 359 U.S. 930, 949.) In that petition (No. 3552) the defendant asserted (1) that the trial court erred in failing to hold an inquiry into his sanity at the time the crimes were committed; (2) that the trial court erred in imposing consecutive sentences; (3) that the trial climate and circumstances were not such as are required before a judgment of conviction can validly be entered; and (4) that the trial court erred by failing to preserve a complete record of the proceedings at the time of his convictions. The defendant's request that counsel be appointed to represent him in this court upon his petition for a writ of error was denied.
In May of 1964, the petition for a writ of error was denied in a memorandum order which held that the defendant's first and third contentions had been disposed of by our previous decision in People v. Heirens, 4 Ill.2d 131, 142, 143, rejected the defendant's attack upon the consecutive sentences, and held, upon the authority of Norvell v. Illinois, 373 U.S. 420, 10 L.Ed.2d 456, that the defendant's final contention, which was based upon the fact that the transcript of a portion of the hearing in mitigation and aggravation was not available because the court reporter had died and his notes could not be transcribed, did not require a reversal of the judgments of conviction. The Supreme Court of the United States denied certiorari. Heirens v. Illinois, 379 U.S. 868, 13 L.Ed.2d 71.
Thereafter a habeas corpus petition was filed in the United States District Court for the Northern District of Illinois. The district court denied relief and the defendant appealed to the United States Court of Appeals for the Seventh Circuit. On April 11, 1967, that court filed the following opinion:
"Before Hastings, Chief Judge, and Swygert and Cummings, Circuit Judges.
"Per Curiam. This case arises on appeal from the District Court's denial of a petition filed under the Habeas Corpus Act (28 U.S.C. § 2241 et seq.). Subsequent to the denial of habeas corpus relief, Milani v. Illinois, 35 U.S. Law Week 3281, was decided by the Supreme Court of the United States. Under that decision, petitioner was entitled to counsel in his writ of error proceedings in the Supreme Court of Illinois (People v. Heirens, No. 3552, decided May 21, 1964), but he was not afforded counsel there, Therefore, those proceedings were invalid. We agree with the Illinois Attorney General that under the Milani decision, petitioner is now entitled to a full and early hearing in the Illinois Supreme Court aided by appointed counsel.
"Although recognizing the seriousness of petitioner's charges, we are reluctant to pass on their merits without giving the Supreme Court of Illinois the first opportunity to determine whether petitioner was denied due process and a fair trial in the state court proceedings (Blair v. People of State of California, 340 F.2d 741, 745 (9th Cir. 1965); Montez v. Eyman, 372 F.2d 100, 103 (9th Cir. 1967)) in the light of criminal law developments since his 1946 conviction on three guilty pleas. See, e.g., Pate v. Robinson, 383 U.S. 375; Smith v. Baldi, 344 U.S. 561; Estes v. Texas, 381 U.S. 532; Fay v. Noia, 372 U.S. 391; Rideau v. Louisiana, 373 U.S. 723; Miller v. Pate, 35 U.S. Law Week 4179; Giles v. Maryland, 35 U.S. Law Week 4181.
"So that the Supreme Court of Illinois may expeditiously take a fresh look at the substantial contentions raised by this habeas corpus petition, and in the interests of comity (Giles v. Maryland, 35 U.S. Law Week 4181, 4185), the proceedings before us will be held in abeyance for a reasonable period of time in order to afford the petitioner the opportunity to pursue his remedies before that tribunal.
"We are appreciative of the exemplary services of Calvin P. Sawyier of the Illinois Bar who served as court-appointed counsel for petitioner here and in the District Court."
After the order of the court of appeals was entered, leave was sought on behalf of the defendant to file in this court a "Petition for Exercise of Jurisdiction." Leave was granted and this court entered an order which recited the action taken by the court of appeals and continued:
"The petition now filed in this Court contends that petitioner's constitutional rights were violated in several respects at the time of his convictions and that these alleged violations were not waived by his pleas of guilty. It requests that this Court make a new and independent determination of the claims advanced in the petition, based upon the records of petitioner's former appeals in 3552 and in 33165, a post-conviction writ of error (4 Ill.2d 131), and the record before the Federal Court in the habeas corpus case. It is also requested that this Court take judicial notice of certain allegedly prejudicial newspaper clippings. ...