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People v. Westbrook

MAY 9, 1972.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

LEVI WESTBROOK, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. RICHARD A. HAREWOOD, Judge, presiding.

MR. PRESIDING JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:

This is an appeal from a dismissal of a petition for a post-conviction hearing. (Ill. Rev. Stat. 1969, ch. 38, par. 122-1 et seq.) Defendant contends that he was denied adequate representation in the post-conviction proceeding and that the trial court improperly dismissed his amended petition.

Defendant was convicted of murder in 1962 and sentenced to a term of not less than 14 years nor more than 14 years and 1 day. On appeal of the conviction to this court he contended that the trial court improperly instructed the jury, the court unduly restricted cross-examination of a prosecution witness and the evidence failed to prove him guilty beyond a reasonable doubt. This court rejected these contentions and affirmed the conviction. See People v. Westbrook, 56 Ill. App.2d 60.

Defendant then filed a pro se petition for a post-conviction hearing on September 18, 1968. John M. McDermott was appointed to represent petitioner and filed an amended petition which alleged:

"1. The Petition was arrested, indicted and arraigned without benefit of counsel and was denied his constitutional rights at every step in all proceedings up to and including trial.

2. The court did not allow prior inconsistent statements made by the state's witness at the coroner's inquest so as to impeach her testimony at trial.

3. The court instructed the jury in language of a statute that was no longer in effect.

4. That petitioner was denied due process of law in that he was not competently represented by counsel in that;

A. Trial Counsel for petitioner waived recording of the Voir Dire examinations.

B. Trial Counsel for petitioner failed to request Behavioral Clinic examination for petitioner, knowing the act of murder to be an act of an irrational man and further knowing that an irrational man is not competent to stand trial."

The State filed a motion to dismiss the petition after which a hearing was held. During the hearing defendant's counsel withdrew paragraphs 2 and 3 of the petition since those allegations had been decided on the prior appeal and were, therefore, res judicata. The State's motion to dismiss was subsequently granted. This appeal followed.

Defendant initially contends that he was denied adequate representation in the post-conviction proceeding. He has submitted an affidavit alleging that he has never met the attorney appointed to represent him in that proceeding. He also acknowledges that he did meet his counsel's law partner with whom he discussed his case.

The duties of counsel appointed to represent a petitioner seeking a post-conviction hearing have recently been incorporated into Supreme Court Rule 651(c) *fn1 which provides:

"The record filed in [the appellate] 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 ...


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