APPEAL from the Circuit Court of Cook County; the Hon. JOSEPH
A. POWER, Judge, presiding.
MR. PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:
Kenneth Holmes, petitioner, appeals from the dismissal of his amended post-conviction petition. After a jury trial, he was found guilty of burglary and sentenced to a term of twelve to thirty years. In his original appeal (People v. Holmes, 127 Ill. App.2d 209, 262 N.E.2d 45), the conviction was affirmed but his sentence was modified to a term of not less than eight years, nor more than twenty years. After his petition for leave to appeal was denied (44 Ill.2d 587), he filed a pro se post-conviction petition. Appointed counsel then filed the instant amended petition.
The issues presented on appeal are whether: (1) he was deprived of his right to effective assistance of counsel; (2) he was denied his right to be present during every stage of his trial; (3) he was entitled to an evidentiary hearing as to how the State obtained a letter he had written to his mother; and (4) his sentence was inconsistent with the provisions of the Unified Code of Corrections.
During trial, the court, over objection, allowed the State to use a letter written by petitioner to his mother for the purpose of impeachment. Later, after the initial use of the letter by the prosecutor and before petitioner's redirect examination, the trial court, out of the jury's presence, inquired as to how the letter was obtained. The court stated that the jury might believe "someone intercepted the letter sent by petitioner to his mother and brought it to court today." Assurances were given by the prosecutor that it was properly obtained and no further action was taken concerning the letter until after denial of petitioner's post-trial motion. At that point the trial court inquired of the attorneys, outside petitioner's presence, "as to how you [the prosecutor] got possession of the letter." The trial judge gave as his reason for this inquiry that the record should disclose this information for the benefit of any reviewing court. This hearing was very short, no testimony was taken, and nothing of any significance was said by either attorney other than the statement of petitioner's counsel that he knew how the letter was received and had talked to the source from whom the State had obtained it. No information was disclosed in this inquiry as to how the letter was obtained.
Petitioner makes three allegations of violations of his constitutional rights; all emanating from the use of the letter at trial. First, he claims he was deprived of the effective assistance of counsel because (a) no objection was made at the hearing held outside his presence concerning the manner in which the letter was obtained, (b) no motion to suppress the use of the letter was made, and (c) no request was made for a proper hearing as to how it was obtained. Second, because the hearing was held outside his presence and without his knowledge, he was deprived of his right to be present during every stage of his trial. Finally, that the hearing held outside of his presence was an extra-judicial investigation of facts relevant to the trial which violated the requirements of due process.
• 1 None of these allegations were raised on original appeal and it is the general rule that where issues might have been raised on appeal and were not, they are considered to have been waived. (People v. Collins, 39 Ill.2d 286, 235 N.E.2d 570.) This application of the law is relaxed only where fundamental fairness so dictates. (People v. Weaver, 45 Ill.2d 136, 256 N.E.2d 816.) Here, because petitioner was represented both at trial and on original appeal by attorneys from the office of the public defender, a substantial question may be raised as to whether certain trial `deficiencies' should have been appealed, and, therefore, we deem it not inappropriate to consider petitioner's contentions. People v. McNeil, 53 Ill.2d 187, 290 N.E.2d 602.
• 2, 3 Concerning the first of these allegations, petitioner refers us to People v. Morris, 3 Ill.2d 437, 447, 121 N.E.2d 810, where the Supreme Court stated:
"`As a general rule, a new trial may be granted where the incompetency of counsel is so great that accused is prejudiced and prevented from fairly presenting his defense, and a new trial sometimes is granted because of some serious error on the part of such attorney in the conduct of the case; and in this respect accused's application will be treated more favorably when the attorney is one appointed by the court than when the attorney is one selected by himself. * * *'"
The basic requirements of due process are not changed in that, while a client is entitled to a fair trial, his attorney is not expected to be infallible. (United States ex rel. Weber v. Ragen, (7th Cir.) 176 F.2d 579.) It is only where such legal assistance amounts to no legal representation at all that the constitutional requirement of adequate representation will demand a reversal. People v. De Simone, 9 Ill.2d 522, 138 N.E.2d 556.
• 4, 5 The guidelines provided in People v. Morris, supra, require that petitioner clearly establish (1) the actual incompetency of counsel, as reflected in the manner of carrying out his duties as his trial attorney, and (2) subsequent prejudice therefrom without which the outcome would probably have been different. Here, we note that petitioner's attorney did object to the use of the letter, however, it is evident that he did not move to suppress it and did not require a hearing as to how it was obtained because he was satisfied that it was lawfully received by the State. Under these circumstances, not having grounds to support a motion to suppress, he properly did not so move. Further, having talked to the source from which the State obtained the letter and having learned it was given voluntarily, there was no indication of incompetency because of his failure to ask for a hearing concerning the letter. Neither is his failure to object to the hearing held outside the petitioner's presence evidence of incompetency. This hearing occurred after the trial and after the post-trial motions had been denied and held, as stated by the trial judge, for the purpose of providing information for the reviewing court. Moreover, petitioner does not indicate how his presence could have added anything to this hearing.
The manner and scope of the trial counsel's examination of witnesses and his general conduct during the trial, indicate, in our opinion, that he was generally informed in the law and legal procedures. Further, we believe that the record not only fails to show incompetency of counsel but, even assuming it to exist, it fails ...