APPEAL from the Circuit Court of Winnebago County; the Hon.
ALBERT S. O'SULLIVAN, Judge, presiding.
MR. JUSTICE GUILD DELIVERED THE OPINION OF THE COURT:
Mr. PRESIDING JUSTICE GUILD delivered the supplemental opinion of the court:
The defendant waived prosecution by indictment and was charged in a joint information with two other defendants of attempt murder against two different individuals and one count of attempt burglary. On May 13, 1971, the defendant withdrew his pleas of not guilty to one count attempt murder and entered a plea of guilty thereto. A hearing in aggravation and mitigation was had on May 20, 1971, and the defendant was sentenced to 10-15 years in the State penitentiary.
On October 27, 1971, the defendant filed a pro se petition for rehearing in aggravation and mitigation. The public defender was appointed on November 22, 1971, to represent the defendant in "post-conviction matters" and a hearing was held on December 23, 1971.
The appeal herein is from the order denying the motion for rehearing in aggravation and mitigation. Counsel for the defendant contends that this is a post-conviction hearing. The State insists the petition is not a post-conviction petition and the defendant is attempting to raise on appeal issues not raised at the trial and issues which cannot be raised by post-conviction petition.
The record discloses that the entire hearing consisted of the following:
"THE COURT: What is your motion today? Is the Defendant in the penitentiary?
MR. BEU: Yes, your Honor, he is in the penitentiary.
We were appointed to represent him on this petition. I have reviewed all the allegations he makes in the ten pages of written material pertaining to the conduct of the aggravation and mitigation hearing. I take it from the petition that one was held, and that he is complaining how it was held and the matters presented there. And that is the only allegation he raises in the petition.
THE COURT: I will deny his motion for additional hearing in aggravation and mitigation.
MR. DOYLE: That is his prayer for relief."
• 1 The issue therefore presented in this appeal is whether or not the petition filed is a post-conviction petition pursuant to Ill. Rev. Stat. 1969, ch. 38, sec. 122. A post-conviction petition is a statutory petition for redress of the substantial denial of the constitutional rights of a person imprisoned in a penitentiary. The petition must meet the requirements of Ill. Rev. Stat. 1969, ch. 38, Sec. 122-2, one of which is to clearly set forth the basis in which petitioner's constitutional rights were violated.
• 2 Petitioner prayed for a new hearing in aggravation and mitigation, setting out at length his allegations of improper conduct by the State's Attorney and of additional information which he felt should have been introduced regarding himself. The public defender at that time apparently did not recognize any claim of denial of constitutional rights and so informed the court. The record reflects and it appears that the trial judge in appointing counsel for the defendant regarded the motion as something more than a rehearing in aggravation and mitigation. It would further appear that the trial court had lost jurisdiction upon the sentence and commitment of the defendant and that the only basis upon which the court could consider the defendant's petition was as a post-conviction matter. While the pro se "Motion for Rehearing on aggravation and mitigation" did not allege any constitutional violations of defendant's rights, we feel that the ends of justice would be best served by treating the same as a post-conviction petition. As indicated above, after defendant filed his pro se "Motion" the record discloses that counsel was in fact appointed to represent defendant "in post-conviction matters." No useful purpose would be served by requiring defendant to file a new post-conviction petition. We therefore hold that the petition filed was a post-conviction petition. This being the case, appointed counsel should have complied with Ill. Rev. Stat. 1969, ch. 110-A, par. 651(c). That rule provides in substance that the appointed attorney shall counsel with the defendant either in person or by mail, that he shall examine the record of proceedings at the trial, and that he shall make "any amendments to the petition filed pro se that are necessary for an adequate presentation of petitioner's contentions." See People v. Slaughter (1968), 39 Ill.2d 278, 235 N.E.2d 566.
From the above quoted record it appears that appointed counsel failed to do any of the required duties imposed upon him by this rule. ...