APPEAL from the Circuit Court of Cook County; the Hon. JOHN C.
FITZGERALD, Judge, presiding.
MR. JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:
Eddie Townsel, petitioner, filed a post-conviction petition in accordance with the provisions of Article 122 of the Criminal Code (Ill. Rev. Stat. 1971, ch. 38, par. 122-1 et seq.) asking the trial court to vacate the judgment entered on May 19, 1967. On the oral motion of the State, the trial court denied the post-conviction petition without an evidentiary hearing. The petitioner appeals asserting he was denied effective assistance of counsel in said proceeding.
Petitioner, after a bench trial, was convicted of murder and sentenced to a term of 14 to 20 years. At the original trial *fn1 the petitioner was represented by privately retained counsel. After the entry of judgment, the trial court advised petitioner that he had a right to appeal from the judgment and sentence; that he had thirty days in which to file his notice of appeal; also, that if his case should be appealed and he was found to be indigent, appellate counsel and a free transcript would be provided for him. No appeal was taken from the judgment and sentence.
On October 15, 1970, petitioner filed his pro se post-conviction petition in which he alleged he was deprived of his right to effective assistance of trial counsel because his privately retained counsel "was incompetent and failed to prepare and present a meaningful defense in that: (A) Petitioner's trial counsel informed petitioner that he (Petitioner) did not have, and could not present any defense at all to the charge of murder, and thereafter said counsel suggested that petitioner accept a bench trial, lest he receive a very long sentence if he (petitioner) demanded trial by jury. (B) Petitioner's trial counsel failed to challenge the sufficiency of the indictment to ascertain whether petitioner could have been guilty of a lesser offense, or not guilty of any offense at all. (C) Petitioner's trial counsel failed to file a timely Notice of Appeal, and petition the court to provide petitioner with a copy of his (petitioner's) common-law record and report of proceedings had at petitioner's trial."
In the post-conviction proceedings the trial court appointed the Public Defender to represent the petitioner. On November 29, 1971, at a hearing on said petition, the State made an oral motion to dismiss on the theory that the petitioner had failed to raise any constitutional question. An assistant public defender appeared for the petitioner and elected to stand on the pro se petition.
At the hearing petitioner's attorney stated he had read the trial transcript *fn2; that he had a personal visit with petitioner at the Joliet State Penitentiary on April 16, 1971; and that, in addition thereto, a questionnaire (consisting of 37 question) was sent to petitioner and returned by him. Petitioner's attorney argued the three issues raised in the pro se petition filed by petitioner and concluded: "So therefore on the three points as presented by Mr. Townsel and after reviewing the whole file very thoroughly, because it has been pending, we find that there are no constitutional questions, and we rest as far as the three points that were presented by Mr. Townsel."
The trial court stated he remembered the case well, that defendant's trial attorney is an excellent trial attorney, that it is incredible that he would do anything adverse to the best interests of his client. Thereupon, the trial court sustained the State's motion to dismiss, and ordered that the prayer of the petitioner be denied, and that the transcript of the trial proceedings be made a part of the record.
Petitioner argues that the requirements set forth in Anders v. California, 386 U.S. 738, 18 L.Ed.2d 493, 87 S.Ct. 1396, where defense counsel on first appeal finds the defendant's case to be frivolous, should apply to a post-conviction hearing in the trial court when petitioner's counsel concludes there are no issues which can legally be raised in the petitioner's behalf at the post-conviction hearing. Petitioner states that "The problem presented by this case is, then, one of first impression for this Court."
In the brief filed in this court, petitioner does not claim the procedure followed in the trial court actually deprived Townsel of the opportunity to add errors in addition to those set forth in his pro se petition.
Petitioner's brief in this court frequently refers to the word "frivolous" as a description allegedly used by petitioner's attorney before the trial court in the hearing on the post-conviction petition. A careful review of the record clearly indicates the word "frivolous" was used by the petitioner's attorney only once and then, as a part of a quote, from a memorandum order by our Supreme Court entered in People v. Cleveland Dorsey, No. 43315, May 18, 1971.
In oral argument before this court, petitioner's appellate attorney asserted that, since petitioner had no one advocating his cause in the trial court, this court should not consider the merits of the petitioner's post-conviction petition, but rather, should only determine the principle of whether Anders should apply to post-conviction proceedings in the trial court.
The powers of the appellate court in its capacity as a reviewing court are set forth in Rules 366 and 615 of the Illinois Supreme Court (Ill. Rev. Stat. 1971, ch. 110A, pars. 366, 615.) Rule 366 applies to civil appeals, whereas Rule 615 applies to criminal appeals. Ill. Rev. Stat. 1971, ch. 38, par. 122-7, *fn3 provides that appeals on post-conviction petitions may be reviewed as in civil cases.
As said in Blum v. City of Chicago (1st Dist. 1970), 126 Ill. App.2d 228, 231, 261 N.E.2d 457, 459, "* * * it is open to an appellee to argue for affirmance of the trial court's judgment on any ground supported by the record (citations)." See also Richman Chemical Co. v. Lowenthal (1st Dist. 1958), 16 Ill. App.2d 568, 149 N.E.2d 351.
• 1 A review of the aforesaid authorities clearly establishes the power of the Appellate Court in matters brought before it. It is fundamental that this court has the authority and the responsibility, to review the record before ...