APPEAL from the Circuit Court of Cook County; the Hon. IRVING
LANDESMAN, Judge, presiding.
MR. CHIEF JUSTICE UNDERWOOD DELIVERED THE OPINION OF THE COURT:
Petitioner Joseph Rose was found guilty of rape and Hugo Mattes was found guilty of attempted rape in a bench trial in the circuit court of Cook County on June 12, 1962. They were each voluntarily absent from court on the original and subsequent dates set for sentencing, and sentences of 15 to 30 years for Rose and 8 to 14 years for Mattes were ultimately imposed in absentia on December 5, 1962.
Petitioners were apprehended and incarcerated in 1965, and thereafter sought leave to file late appeals before both the appellate and Supreme courts of Illinois. Being denied leave to appeal, petitioners filed a petition for a post-conviction hearing under the Post-Conviction Hearing Act. (Ill. Rev. Stat. 1967, ch. 38, par. 122-1 et seq.) After hearings before the original trial judge, the State's motion to dismiss was sustained. The petitioners here appeal that dismissal.
The following is a brief summary of the trial testimony of the complaining witness. On March 19, 1962, she went to 1635 Lunt Avenue in Chicago, pursuant to an advertisement for apartment rental. She was met by Rose, who owned the building and had advertised the apartment which interested her. He and Mattes shared another apartment in which Rose alone met her. He showed the rental apartment to her, and they also toured other apartments in the building. In reply to her statement that the apartments appeared well-kept, Rose noted that his tenants were all pleased, and that one tenant had even sent him a gift of fruit punch from Ecuador. Then he told her that another party had earlier expressed an interest in the available apartment and he expected that party to return the next evening at 6:00 P.M. with his decision whether to take it. At Rose's suggestion, complainant agreed to return the next evening to make final arrangements for rental if the other party decided not to take the apartment.
When she returned at 6:00 P.M. March 20, she asked to see the available apartment again. After seeing it, Rose suggested that she wait in his kitchen until the other party arrived, so that he could deal with the party alone. While waiting, Rose again mentioned the Ecuadorian punch and offered complainant a glass. She accepted, and he took two already filled glasses from his refrigerator. He suggested that she drink her glass quickly, to get the full effect. Within 30 minutes she began to feel ill and wanted to go home. Rose, however, urged her to lie down in the bedroom, assuring her she would feel better soon. She then lost consciousness and regained it as she felt Rose pulling at her clothes. She drifted back into unconsciousness only to awaken nude, while Rose, also nude, was having intercourse with her. She then saw Mattes walking in the bedroom nude. Rose got off the bed and Mattes then attempted to have intercourse with her. Although she was unable to move her arms and legs to resist him, he desisted when she shouted in protest. Later, after recovering somewhat, she felt ill and went to the washroom to vomit. The petitioners then refused her request for her clothes, and tried to get her to drink something, saying it would flush the poison out of her system. They next forced her to eat some pizza, and then allowed her to dress. After again trying to force her to drink a liquid, they called a cab for her and she left in it about midnight.
She complained to the cab driver, "How can people be so horrible?" Arriving at her own apartment building, she entered the building and went to her apartment where she showered and went to bed. The next morning as she was leaving her apartment to go to work she met a neighbor. Reminded then of the events of the previous night, she mentioned them to the neighbor and was taken to the police station. The police took her to the hospital for an examination and later arrested Rose and Mattes.
The petitioners have maintained that Rose gave complainant a drink of scotch and gingerale, some time after which she went to the washroom. She then came out and mentioned that she felt ill, and asked if she could lie down for awhile. After ten minutes, Rose knocked on the door of the bedroom where she was resting, and asked if he could come in. She said he could, and upon entering Rose saw her lying nude on the bed. Rose claims that she gave her consent to the intercourse which followed. Later that evening, Mattes returned to the apartment and spoke briefly with Rose and complainant, both still nude in the bed. Shortly thereafter he suggested ordering a pizza which was delivered about 11:00 P.M. After eating some pizza, complainant dressed and then left in the cab which had been called for her. The petitioners maintain that no drug was present in the drink given her, that she consented to intercourse with Rose, and that Mattes never approached her.
The petitioners allege six grounds on which they claim their convictions constitute a deprivation of constitutional rights. Three of the allegations are of minor consequence: representation, even though by counsel of their own choosing, was inadequate; the prosecution introduced no evidence, and the sentences were excessive. The remaining three, which require more extensive treatment here, are: the prosecution suppressed evidence favorable to the defense; the prosecution allowed evidence which it knew or imputedly knew was false, to go uncorrected, and the trial judge failed to see that the defendants received a fair and impartial trial.
The prosecution contends first that the petition was not filed within the five-year limit which applies under the applicable act. (Ill. Rev. Stat. 1961, ch. 38, par. 826.) Alternatively, it is maintained that the petitioners' allegations failed to make a substantial showing of violation of constitutional rights.
The Post-Conviction Hearing Act required in 1962 that proceedings be commenced no more than five years after rendition of final judgment. (Ill. Rev. Stat. 1961, ch. 38, par. 826.) The 1965 amendment (Ill. Rev. Stat. 1967, ch. 38, par. 122-1) which increased the time for filing to 20 years, does not apply retroactively. (People v. Lansing, 35 Ill.2d 247.) The point of concern is the date from which the five-year limitation begins. Petitioners were found guilty July 13, 1962, sentenced on December 5, 1962, and filed their petition on December 1, 1967. Thus, if the limitation period began with the verdict, the petitioners were late in filing, while they did file within five years of the sentencing date. In considering whether the time for filing a bill of exceptions in a criminal case ran from the rendition of the guilty verdict or from the date of sentencing this court rejected the argument that the time of "judgment" is the time of the guilty verdict. "The final judgment in a criminal case is the sentence." (People v. Becker, 414 Ill. 291, 295; see also People v. Kidd, 401 Ill. 230.) Furthermore, although not dispositive in interpreting a statute in 1962, the legislature in 1963 issued the following definition of "judgment": "`Judgment' means an adjudication by the court that the defendant is guilty or not guilty and if the adjudication is that the defendant is guilty it includes the sentence pronounced by the court." (Ill. Rev. Stat. 1963, ch. 38, par. 102-14.) Clearly, petitioners are not barred for failure to file within five years of "final judgment". The fact that, had they not voluntarily absented themselves, sentencing would have been more than five years before the filing, does not alter this determination.
The Post-Conviction Hearing Act provides a separate remedy, the availability of which is not contingent upon exhaustion of any other remedy. As noted by this court in an early inquiry into the Act, "The act does not replace any of the three existing remedies of habeas corpus, statutory coram nobis or writ of error. The fact that those three remedies exist furnishes no reason or basis as to why the legislature could not properly provide another remedy if in its wisdom another were needed or desirable." (People v. Dale, 406 Ill. 238, 243.) The concept of res judicata clearly does not bar petitioners' claims here, since those claims have not been reviewed, and the present proceedings are timely. On the same basis, waiver does not bar assertion here of constitutional rights. While the petitioners have waived, by failure to appeal, those rights based on mere error in the trial, they are still entitled to assert those constitutional rights which the Post-Conviction Act is designed to protect and preserve. The essence of waiver was reiterated by this court in People v. Ashley, 34 Ill.2d 402, 408: "We have consistently held that where review has once been had by a writ of error, * * * any claim which might there have been raised, but was not, is considered waived." (Emphasis added.) (See People v. La Frana, 4 Ill.2d 261, 266.) Thus, a party who fails to take an appeal, whether by careful choice, inadvertence, indigence, or as a result of fleeing the jurisdiction as here, may waive claims of error, but any right which may have existed to a post-conviction hearing on the constitutionality of imprisonment will remain undiminished.
To merit a hearing under the Act, a petition must make a substantial showing that the petitioner's constitutional rights have been violated. Unsupported allegations, which are essentially mere conclusions, are not sufficient to require a hearing. (People v. Arbuckle, 42 Ill.2d 177, 179; People v. Orndorff, 39 Ill.2d 96, 98-99.) Moreover it is clear that the Act is not properly invoked where the issue is essentially that of petitioner's guilt or innocence. (People v. Dale, 406 Ill. 238, 245.) Petitioners here allowed their time for appeal to lapse, and they may not use the Post-Conviction Hearing Act as an alternative medium for review of non-constitutional issues. Yet, a dismissal of a petition is "warranted only if the allegations of fact, liberally construed in favor of the petitioner, fail to make a showing of imprisonment in violation of the Federal or State constitution." People v. Bernatowicz, 413 Ill. 181, 184-85, cert. denied (1953) 345 U.S. 928, 97 L.Ed. 1358, 73 S.Ct. 788; People v. Jennings, 411 Ill. 21, 26.
Turning to the petitioners' allegations, it is apparent that several are insufficiently supported, and do not make a substantial showing of facts constituting a violation of constitutional rights. It is alleged that the trial counsel chosen by petitioners was inadequate. Poor representation by an attorney of the defendant's own choice does not ordinarily constitute a violation of due process requirements. (Mitchell v. People, 411 Ill. 407, cert. denied 343 U.S. 969, 96 L.Ed. 1364, 72 S.Ct. 1065; People v. Pierce, 387 Ill. 608, 615.) While the petition does raise questions as to the trial counsel's effectiveness, his efforts were clearly not shown to be "of such low caliber as to amount to no representation and to reduce the trial to a farce"; and therefore the allegation of inadequate counsel is insufficient to raise a constitutional issue. United States v. Ragen, 166 F.2d 976, 980-81; People v. Stephens, 6 Ill.2d 257, 259-60.
The allegations that the prosecution introduced no evidence is clearly not sufficient upon an examination of the record. Nor is the contention that the petitioners' sentences are excessive and may be adjusted in a post-conviction hearing well founded. It is maintained that petitioners were denied equal protection and that their sentences constituted cruel and unusual punishment, but that clearly is not established. The sentences were within the statutory limits of life imprisonment for rape. (Ill. Rev. Stat. 1961, ch. 38, par. 11-1) and 14 years for attempted rape (Ill. Rev. Stat. 1961, ch. 38, par. 8-4.) "It is the universal rule, consistently adhered to by this court, that a sentence within the maximum term fixed by the legislature, is not cruel and unusual punishment prohibited by the constitution." People v. Dolgin, 6 Ill.2d 109, 112.
The petitioners claim that the prosecution used evidence which it knew, or imputedly knew, to be false, and allowed false evidence to go uncorrected. The allegation is based essentially upon apparent inconsistencies in the testimony of the complaining witness, which the petitioners claim were instances of perjury. One such instance involved complainant's testimony that when she returned home after the alleged rape she met no one in the building while going to her apartment. This is said to contradict later testimony to which a State objection was sustained, that she met her roommate in her apartment. There is no clear contradiction here, and a claim that the prosecution failed to correct her testimony must first clearly establish that the testimony was false. A similar allegation rests on the complainant's various statements regarding the use of force by the petitioners, and other statements in which she said no force was used in the rape. This contradiction, if clearly established, would be quite significant in a typical forced-rape case. However, in this case the complainant stated that she was drugged, and unable to resist. Her statements that the petitioners "forced" her to eat a pizza, and tried to "force" a drink down her throat, are not clearly contradicted by statements to the effect that the rape was accomplished without force. Any superficial contradiction which may appear can easily be explained by the complainant's various interpretations of the word "force" in the several contexts. Another claim asserts a contradiction between the hospital report of the examination made the following morning, and the police report and complainant's testimony. The hospital report states that the complainant arrived alone, and the police were called by the hospital. Complainant ...