APPEAL from the Circuit Court of Perry County; the Hon. ROBERT
BASTIEN, Judge, presiding.
MR. PRESIDING JUSTICE GEORGE J. MORAN DELIVERED THE OPINION OF THE COURT:
The defendant was convicted in Perry County upon his plea of guilty to one count of burglary and two counts of theft.
The defendant subsequently filed a pro se post-conviction petition which was later amended by appointed counsel. The amended petition contended that: (1) The defendant was denied effective assistance of counsel, (2) defendant was not fully admonished of his constitutional rights when he pled guilty, and (3) the guilty plea was coerced by threats made by the sheriff's department of Perry County. The post-conviction petition was dismissed by the court without an evidentiary hearing on the ground that the defendant's allegations were thoroughly refuted by the record of the guilty plea proceeding.
• 1 Generally, where a post-conviction claim of denial of constitutional right is founded on evidence not a part of the record, an evidentiary hearing should be held. (People v. Airmers, 34 Ill.2d 222, 215 N.E.2d 225.) If the post-conviction petition is demonstrated to be non-meritorious on the basis of what is revealed in the record, however, the petition may be dismissed without an evidentiary hearing. People v. Spicer, 47 Ill.2d 114, 264 N.E.2d 181.
• 2 Appellant first contended in his post-conviction petition that the defendant spoke to his appointed counsel on only one occasion and that counsel did not inform the defendant of any of his rights. The defendant claims that he was therefore denied the effective assistance of counsel. The record reveals, however, that before the plea of guilty was accepted, defense counsel told the court that he had informed the defendant of his rights. The defendant concurred in that statement and said that he had no complaints about his representation. He also told the court that he was satisfied that his attorney had spent enough time on the case and that he was fully advised of his rights. We believe that the record sufficiently refutes the claim that the defendant was denied effective assistance of counsel so that an evidentiary hearing was not required on that issue.
• 3 Appellant secondly contended in his post-conviction petition that the trial court did not admonish the defendant of his constitutional rights before he pled guilty. This is completely disproved by the record. The defendant does not contend in this appeal, in fact, that the court erred in failing to hold an evidentiary hearing on that question.
We believe that the third post-conviction assertion, however, necessitated the holding of an evidentiary hearing. The defendant maintains that he was induced to plead guilty by police threats that, if he did not do so, a companion of his would be jailed and that person's child would be placed in a public care home.
The transcript of the proceedings reveals that before the court accepted the defendant's guilty plea, the defendant responded negatively when asked whether any force, threats, or promises were used to induce the plea. The State insists that this portion of the record sufficiently rebuts the defendant's assertion. We disagree.
The Illinois Post-Conviction Hearing Act (Ill. Rev. Stat. 1971, ch. 38, par. 122-1 et seq.), provides for a proceeding whereby a prisoner can seek redress from his conviction when he claims a substantial denial of his constitutional rights. Both the statute and the pertinent case law establish that the proceeding is commenced by filing a petition that sets forth factual allegations that would translate into a substantial denial of constitutional rights if proven. Mere conclusions of law to the effect that constitutional rights were denied is not sufficient. In addition, affidavits and any other evidence supporting the factual allegations must accompany the petition or the petition must explain the absence of such evidentiary support. The State may answer the petition or move to dismiss. Sections 122-5 and 122-6 of the Act give the courts considerable procedural discretion and several cases have helped to define the borders of that discretion. In People v. Jennings, 411 Ill. 21, a case taken to the United States Supreme Court and remanded to the Illinois Supreme Court, guiding principles were written which shed some light on this case:
"The Illinois Post Conviction Hearing Act * * * [provides] a remedy for any person who is imprisoned in the penitentiary in violation of his constitutional rights. * * *
* * * the trial court shall examine the petition with a view to determining whether the allegations of fact, liberally construed in favor of the petitioner, and taken as true, make a showing of imprisonment in violation of the Federal or State constitution * * *.
If the petition so charges, the trial court should ascertain whether it is supported by accompanying affidavits and if not, whether the absence of such affidavits is sufficiently explained and excused by the petitioner's own sworn statements. Where there are no supporting affidavits and their absence is neither explained nor excused, the trial court should either dismiss the petition or grant a further time within which such affidavits may be obtained.
A petition meeting these requirements [substantial allegations and affidavits] is sufficient to invoke the Act. Such a petition calls for answer from the State's Attorney and a hearing on the merits. * * *" 411 Ill. 21, 26.
From this case and the statute, the threshold issue emerges: Did Crislip's petition allege facts which if proven would show Crislip was imprisoned in violation of his constitutional rights?
The trial court decided the amended petition for a post-conviction hearing was sufficient. Although the state contends in its brief that Crislip's amended petition did not allege facts which established a prima facie denial of constitutional rights, the State did not argue that the petition per se was insufficient in the trial court. Therefore this contention will not be ...