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People v. Sullivan

JULY 14, 1972.

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

v.

ALBERT J. SULLIVAN, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. JAMES D. CROSSON, Judge, presiding.

MR. JUSTICE DRUCKER DELIVERED THE OPINION OF THE COURT:

This is an appeal from the dismissal of defendant's post-conviction petition which was transferred to this court from the Supreme Court. Defendant contends that (1) the court abused its discretion in not appointing private counsel to represent him in the post-conviction proceeding; (2) he was denied any representation at the hearing on the State's motion to dismiss his pro se petition; (3) the representation by his appointed counsel was wholly inadequate; (4) he was deprived of various constitutional rights; (5) he had a right to be present in court to contradict statements detrimental to his interests.

Defendant was arrested on June 27, 1968. Subsequently six indictments were returned, three charging him with rape and one each for armed robbery, attempted rape and unlawful possession of narcotic drugs (marijuana). On July 25, 1968, counsel from the Public Defender's office was appointed by the court, but defendant refused to accept this appointment. An order was entered that the Public Defender be appointed as counsel in an advisory capacity only. On August 23, 1968, leave was given to the Public Defender to withdraw as counsel and the appearance of attorney Edison L. Hoard was filed as counsel for defendant.

On November 6, 1968, after consulting with Mr. Hoard and being properly admonished by the court, the defendant pleaded guilty to each of the six indictments. He was sentenced to varying concurrent terms, the maximum being 14 to 25 years for rape.

On November 20, 1969, defendant filed a pro se petition under the Illinois Post Conviction Hearing Act, (Ill. Rev. Stat. 1967, ch. 38, par. 122), alleging: Denial of right to counsel at interrogation following arrest; failure to give Miranda warning; police brutality at his arrest, interrogation and lineup; the trial court's denial of motion to suppress illegally seized evidence; denial of his right to counsel at a pre-indictment lineup which was so suggestive as to deny him due process of law; excessive bail; denial of right to a jury trial. The petition also stated that his guilty plea was coerced by a statement of the arresting officer that he would get a life sentence if he did not plead guilty and a statement by an Assistant State's Attorney "that if petitioner asked for a jury trial on each charge and lost just one, that the state's [sic] Attorney would ask for a maximum sentence of 150 years"; and that the State failed to prove him guilty beyond a reasonable doubt. The prayer for relief in the petition requested the court to appoint competent counsel other than a public defender, to present his petition to the court and that the judgment be vacated. In his motion for appointment of counsel filed with the pro se petition, he again repeated his request for counsel other than public defender alleging denial of competent counsel due to "threats by lawyers and judicial authorities." At the time of filing his petition, defendant filed for a writ of habeas corpus ad testificandum for personal appearance at the hearing on his post-conviction petition.

The Public Defender's office was appointed to represent the defendant. On February 6, 1970, the State's Attorney filed a motion to dismiss defendant's pro se post-conviction petition. On April 24, 1970, defendant filed a pro se motion for change of counsel repeating once again his desire for counsel other than the Public Defender. In this motion he alleged that Mr. Rantis of the Public Defender's office did not consult with him and that the Public Defender could not adequately investigate his case because the Public Defender's office is understaffed, overworked, underpaid and ineffective in handling complex cases.

On April 29, 1970, a hearing was held on the State's motion. At the hearing Mr. Rantis of the Public Defender's office stated that Mr. Winiger, who is no longer with the Public Defender, handled the defendant's case. He further stated, "[W]e have read the transcript of the proceedings, we have read the petition, we have had personal interviews with Mr. Sullivan which occurred on 12-12-'69. A personal visit was made by Mr. Winiger. Mr. Winiger notes to me that Mr. Sullivan would not cooperate with him and would not talk to him. He [defendant] wants us to stand on his petition, and this is what we are going to do, but I want to make it part of the record."

The court sustained the State's motion to dismiss and ordered that the post-conviction petition be denied.

Opinion

• 1 Defendant's first contention is that the court abused its discretion by failing to appoint private counsel to represent him in the post-conviction proceedings.

Defendant's argument is without basis. Ill. Rev. Stat. 1967, ch. 34, par. 5604, states: "Any court may, with the consent of the defendant and for good cause shown, appoint counsel other than the public defender, and shall so appoint if the defendant or accused shall demand and show good cause for that appointment." (Emphasis added.) Defendant has failed to show good cause in his petition and motions by his general allegations of threats by unspecified "lawyers and judicial authorities" and equally general allegations that the Public Defender is understaffed, overworked, underpaid and ineffective in handling complex cases.

The record shows that before trial the Public Defender withdrew and defendant requested permission to defend pro se. However, at the time defendant pleaded guilty he was represented by counsel of his own choice who advised the court that he had had a conference with defendant and defendant's father after which the plea of guilty was entered. The court properly admonished the defendant as to the consequences of his plea and a stipulation of facts was presented.

• 2 Defendant's contention in his second pro se motion for change of counsel that George Rantis did not consult with him is irrelevant. The record shows that Mr. Winiger, who handled the defendant's case, did consult defendant and defendant refused to cooperate. We therefore find no showing of good cause for change of counsel.

• 3 Defendant relies on People v. Smith, 37 Ill.2d 622, 230 N.E.2d 169, wherein the court held that the defendant was entitled to counsel other than the Public Defender. The court in Smith based its conclusion on the fact that the defendant's petition was based in part on the incompetency of the Public Defender at his trial. There is no such conflict of interest in the case at bar since defendant was not represented at ...


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