APPEAL from the Circuit Court of Cook County; the Hon.
REGINALD J. HOLZER, Judge, presiding.
MR. JUSTICE BURMAN DELIVERED THE OPINION OF THE COURT:
This is an appeal from an order dismissing a petition for post-conviction relief without an evidentiary hearing. The defendant, Clarence W. Walker, was indicted and charged with the offenses of rape, armed robbery, and attempt murder. After a bench trial, he was found guilty on all three charges and sentenced to the penitentiary. He took an appeal to this Court in which he contended (1) that the State withheld evidence favorable to him, (2) that statements were elicited from him in violation of his Fifth Amendment rights, (3) that evidence obtained in an illegal search and seizure was used against him, (4) that he received ineffective assistance of counsel, and (5) that he was erroneously sentenced to serve three consecutive sentences. In an opinion filed on November 17, 1971, the conviction was affirmed. (People v. Walker, 2 Ill. App.3d 1026, 279 N.E.2d 23.) Petition for leave to appeal to the Supreme Court was denied.
During the pendency of the defendant's appeal from his conviction, he filed a lengthy pro se petition seeking post-conviction relief. The petition was denied without an evidentiary hearing. Notice of appeal was filed and new counsel was appointed. This appeal was originally taken to the Supreme Court, but was transferred here by order of that Court.
The defendant, on appeal, contends (1) that he received inadequate assistance of counsel in presenting his post-conviction petition, (2) that he was coerced into waiving trial by jury through reliance upon representations of his court appointed counsel who informed him that the trial judge threatened to commit him to a mental institution if he did not waive trial by jury, and (3) that he did not understandingly, intelligently, and expressly waive trial by jury.
We consider first the adequacy of representation given the defendant in presenting his post-conviction petition. The State filed a written motion to dismiss the petition on the ground that the allegations in the petition failed to raise appropriate Constitutional questions. At the hearing on the motion, an Assistant Public Defender informed the Court that (1) he visited and consulted with the defendant at the penitentiary at Menard, Illinois, (2) that he read the pro se petition, and (3) that he reviewed the voluminous trial transcript and the brief and abstract filed on direct appeal from the conviction. After this examination he concluded that there was no support for the allegations in the petition. The cause was then transferred to Judge Holzer who had presided at the defendant's trial. At a hearing before Judge Holzer, an Assistant Public Defender, after reviewing the facts, stated "that there are no Constitutional issues that could be raised in a post-conviction proceeding and those that could have already been raised in the brief and argument for the appeal to the Appellate Court." He then moved to withdraw as attorney for the defendant under Anders v. California, 386 U.S. 738, because in his opinion the allegations of the petition were frivolous. The motion to withdraw was denied, and the State's motion to dismiss was granted.
• 1, 2 Nearly two months prior to the hearing on the motion to dismiss the post-conviction petition, the Public Defender filed a brief in the original appeal which set forth grounds for reversal based on Constitutional deprivations. It is now argued, "Walker's counsel should have at least presented constitutional claims identical to those presented on direct appeal at the post-conviction proceeding by amendment or otherwise." It is well established that where a direct appeal from a conviction has been taken, a defendant cannot raise in a post-conviction petition those issues which were or could have been reviewed in the direct appeal (People v. Derengowski, 44 Ill.2d 476, 256 N.E.2d 455; People v. Dale, 406 Ill. 238, 92 N.E.2d 761), unless it is fundamentally unfair to prevent a consideration of the issue. (People v. Ikerd, 47 Ill.2d 211, 265 N.E.2d 120.) The scope of review permitted in a post-conviction proceeding is not expanded simply because the petition is filed before a reviewing court hands down an opinion. Once an issue is presented on direct appeal to a court of review, it cannot properly be considered at a post-conviction hearing even though at the time of the hearing the reviewing court has not passed upon the question.
• 3 It is further argued that "The lack of amendments alone requires reversal of the petitioner's dismissal below as a matter of law." It is urged that the unamended petition is inartfully drafted, grammatically disastrous and incoherent. There is, however, no showing by present counsel and no indication in the record of the existence of facts which would warrant an amendment. As the Supreme Court pointed out in People v. Stovall, 47 Ill.2d 42 at 46, 264 N.E.2d 174 at 176, "Where there is not a showing that sufficient facts or evidence exist, inadequate representation certainly will not be found because of an attorney's failure to amend a petition or, when amended, failing to make the petitioner's allegations factually sufficient to require the granting of relief."
In conformity with Supreme Court Rule 651(c), (Ill. Rev. Stat. 1969, Ch. 110A, par. 651(c)), the Assistant Public Defender consulted with the defendant and read the transcript and documents filed on appeal. After this examination was completed, he determined that there were no Constitutional questions presented in addition to the ones raised on direct appeal, and he decided to stand on the original petition. Even though appointed counsel did not find merit and argue the points raised in the petition we cannot say that the defendant was given incompetent representation by appointed counsel where there was consultation with the defendant and a thorough examination of all possible questions.
In People v. Hawkins, 44 Ill.2d 296, 255 N.E.2d 456; People v. Craig, 40 Ill.2d 466, 240 N.E.2d 588; and People v. Wilson, 40 Ill.2d 378, 240 N.E.2d 583, cited by the defendant, appointed counsel failed to consult with the petitioner to ascertain his grievances before formulating a trial strategy, and counsel made no attempt to prepare and present the claims of the defendant. While it is true that appointed counsel in the present case did not amend the petition, the decision to stand on the unamended pleading was made only after consultation with the defendant and after an examination of the petition, the transcript, and the brief presented on direct appeal.
Paragraph 6 of the Petition alleges, "Petitioner was denied and deprived of trial by a Jury where he was forced to sign a jury waiver by threat of being committed to a mential hospital by the Court threw counsel who stated if Petitioner seek a jury it was the Judge intention to commit him as a Court case * * *." It is contended that this allegation of coercion in the inducement of the jury waiver raises a constitutional question which can only be resolved after an evidentiary hearing.
The record reveals that when the cause was called for trial, defense counsel announced that the matter would be heard as a bench trial. The following exchange then occurred:
"MR. LAMPKIN: [Defense counsel]: Do you understand that if you sign a jury waiver, you are waiving your right to a trial by jury and submitting yourself to trial by this Court?
MR. LAMPKIN: Is that what you ...