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People v. Richardson

JANUARY 30, 1974.

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

v.

JAMES H. RICHARDSON, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Warren County; the Hon. SCOTT I. KLUKOS, Judge, presiding.

MR. JUSTICE DIXON DELIVERED THE OPINION OF THE COURT:

The defendant, James H. Richardson, entered a plea of guilty to an indictment for theft of property exceeding $150 in value and on Jan. 13, 1971 was sentenced by the Circuit Court of Warren County to a minimum of four years and a maximum of seven years. On Nov. 29, 1971 he petitioned for post-conviction relief which was denied without an evidentiary hearing by order of the trial court entered Nov. 2, 1972. The instant appeal is from that order.

Sept. 30, 1970 the defendant and Carrol Tarvin were jointly indicted for theft of property exceeding $150 in value. While being held in Warren County jail they escaped but were captured in hardly no time. They were charged with escape. There was a burglary indictment against them pending in Mason County, Illinois. There was also an indictment for assault with intent to commit murder pending against them in Garland County, Arkansas. Extradition proceedings had been had and an order entered remanding the defendants to the sheriff here for delivery to the Arkansas authorities.

The same counsel had been appointed to represent both defendants. He procured an agreement from all of the state's attorneys involved, including the one from Garland County, Arkansas that in exchange for a four to seven year sentence all charges except theft would be dropped and the extradition order vacated.

Defendant was 23 years old at the time and had one prior conviction for burglary (in 1968). He had an honorable discharge from the Army having served in Germany from 1966 to 1968. The co-defendant Tarvin had served two years in prison for assault, six months for reckless driving and had been dishonorably discharged from service.

No direct appeal was ever taken. Defendant filed a pro se petition for post-conviction relief. An attorney was appointed and after amendments the petition asserted:

1. That trial counsel was ineffective because co-defendant's interests were in conflict as shown in the record of proceedings.

2. That defendant's plea of guilty was not voluntarily and understandingly made because the negotiations were not in his presence.

3. That the three State's Attorneys and defendant's counsel actively conspired against defendant to force him to plead guilty.

4. That trial counsel was incompetent because he did not ask for probation for defendant, knowing that defendant did not have a previous felony conviction.

The People moved to dismiss the petition on the ground that there was no basis in the record to substantiate defendant's contentions and that defendant had set forth no grounds not contained in the record and that allegations in the petition were wholly unsupported either by affidavit or by reference to any proceedings before the trial court.

The trial court read the transcript and dismissed the petition without an evidentiary hearing.

• 1, 2 While the Post-Conviction Hearing Act contemplates that evidence be taken when a claim of substantial denial is based on assertions beyond the record (People v. Sigafus, 39 Ill.2d 68); a trial court may properly render its decision on a motion to dismiss a post-conviction petition on the basis of "what is contained in a pleading to which the motion is directed, read in conjunction with the transcript of proceedings at the ...


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