APPEAL from the Circuit Court of Cook County; the Hon.
ALEXANDER J. NAPOLI, Judge, presiding.
MR. JUSTICE SCHAEFER DELIVERED THE OPINION OF THE COURT:
The basic issue that permeates these consolidated cases concerns the quality of representation required of counsel appointed to represent an indigent prisoner in proceedings under the Post-Conviction Hearing Act. Ill. Rev. Stat. 1965, chap. 38, pars. 122-1 through 122-7.
After a trial before a judge of the circuit court of Cook County, the defendant, Daniel Slaughter, was found guilty of the murder of his wife, and on November 24, 1961, he was sentenced to imprisonment for a term of fourteen years. On writ of error the judgment of conviction was affirmed. (People v. Slaughter, 29 Ill.2d 384.) In that case the court held that by introducing evidence on his own behalf the defendant had waived his contention that a verdict in his favor should have been directed at the close of the People's evidence. His other principal contention, that the element of malice aforethought was not established beyond a reasonable doubt, presented, in the opinion of the court, "a closer issue." (29 Ill.2d at 389.) In resolving that issue the court relied first upon testimony that on a previous occasion, during a quarrel with his wife, the defendant had threatened to "knock her brains out," and second, upon his conflicting versions of the "accident" and the conflict between his explanations and the physical facts. After discussing the evidence the court concluded: "Such vacillations are hardly consistent with an honest claim of accident and we believe that defendant, having undertaken to explain and justify the shooting to the authorities, may be judged by the conflicts and improbabilities in those explanations. Considered in conjunction with the evidence of malice implicit in defendant's prior threat to do violence to his wife, we are satisfied that there was sufficient evidence to establish the element of malice beyond a reasonable doubt." 29 Ill.2d at 390-391.
On November 9, 1965, the defendant filed a pro se post-conviction petition in which he alleged his indigence and requested the appointment of counsel. While his petition used something akin to legal terminology, it was basically incoherent. The last two paragraphs are illustrative. "The entire proceedings upon which the conviction was had were grossly illegal, wanting in law, and contrary to the Constitution of the United States, and the State of Illinois, being contested in the following manner:
"Petitioner's allegations of the manner in which his Constitutional Rights were violated, on the allegations the petitioner bases his petition, and he verily believes that upon hearing of the cause under the Post-Conviction Hearing Act, Rule 27 it will be much more clearly shown that this petitioner was deprived of his liberty without due process of law, and reversal shall be entered by the Court of jurisdiction in accordance with the meaning of Article Two (2) Section Nineteen (19), of the Illinois State Constitution, and the (14th) Amendment of the Constitution of the United States. His lack of funds and his inability to the required date from his place of incarceration, upon hearing of the cause he be given the use of subpoena to obtain the truth to place before the Court."
On February 9, 1965, the State filed a motion to dismiss the post-conviction petition because it failed to satisfy the requirements of the statute. That motion came on for hearing on March 4, 1965, and the entire report of proceedings at the hearing on the motion to dismiss is as follows:
"THE CLERK: Daniel Slaughter.
"ASSISTANT STATE'S ATTORNEY: It's your case. We filed a written motion. In 61-1632, the crime was murder. On Nov. 24th, 1961, there was a sentence of 14 years to the Illinois State Penitentiary. There was a Writ of Error, reported in 29-Illinois (2d) 384, which was affirmed, and the order was entered down here on December 23rd, 1963. All of his allegations are nothing more than mere conclusions, and we have filed a Motion to Dismiss. They are bare allegations and the allegations affirmed are res judicata to the petition.
"ASSISTANT PUBLIC DEFENDER: Just for the record, the petitioner alleges that the entire proceedings upon which the conviction was had were grossly illegal, wanting in law and contrary to the Constitution of the United States in that, generally, his rights were violated, his constitutional rights were violated.
"THE COURT: All right, motion of the respondent to dismiss is sustained."
On March 29, 1965, the defendant filed two pro se motions. One of these motions requested that the judgment dismissing the defendant's post-conviction petition be vacated because the defendant had not been present at the hearing and had not been adequately represented by the Public Defender. The motion was illiterate and repetitive, but the message it sought to convey appears unmistakably from the following paragraph: "8. For subjecting the Petitioner to counsel incompetent of criminal laws, unacknowledged of his case, that said court appointed counsel wilfully disavowed Petitioner's repeated pleas for correspondence and consultation, which would inevitable abolish the said court appointed counsel's efficiency in this case, therefore, the Court must, acquiesce in the necessity which denounce the said court appointed counsel's representation, and hold it, as the Court hold other cases represented without counsel." The other motion filed by the defendant requested the appointment of counsel other than the Public Defender.
These motions came on for hearing on May 13, 1965. At that time the assistant State's Attorney urged the court to deny the defendant's motion to vacate the order dismissing the post-conviction petition. The assistant public defender then stated: "We represented Daniel Slaughter in the post conviction; and, as counsel pointed out, it was dismissed on March 4th, 1965. We advised Mr. Slaughter that it was dismissed. Now, we've gone as far as our appointment is concerned. * * * There's no problem here." And after the court had ruled that the "petition" to vacate the judgment would be denied, the assistant public defender stated: "We're not involved in this petition." No action was taken on the defendant's motion for the appointment of other counsel. On February 3, 1966, the defendant filed a pro se motion for leave to amend his petition, which was summarily denied on that day.
We granted the defendant leave to appeal from the order dismissing his original post-conviction petition (No. 39424), and he has appealed from the orders that denied his motion to vacate the dismissal and his motion for leave to file an amended petition. (No. 40071.) The attorney who now represents the defendant was appointed by this court. He moved in this court to vacate the orders appealed from and to remand the cause to the circuit court. The motion was denied. He then moved for an extension of time within which to file his abstract and brief. That motion was allowed, and on March 1, 1967, he filed a new post-conviction petition in the circuit court in which he alleged that the constitutional rights of the defendant were violated because he was not mentally competent to stand trial, and because his testimony at a coroner's inquest had been received in evidence against him, although he was neither represented by counsel at the inquest nor advised of his right to be represented. The presiding judge dismissed this petition on the ground that under section 3 of the Post-Conviction Hearing Act (Ill. Rev. Stat. 1967, chap. 38, par. 122-3) no more than one petition could be filed. The defendant appealed from this order of dismissal (No. 40688), and the three appeals have been consolidated in this court.
What happened in the trial court in this case and what has happened in other cases has demonstrated to us that it is important now to re-emphasize the purpose of the Post-Conviction Hearing Act and to describe again the circumstances which prompted its enactment by the General Assembly in 1949. The story has been told before (Jenner, The Illinois ...