APPEAL from the Circuit Court of Madison County; the Hon.
JAMES O. MONROE, JR., Judge, presiding.
MR. JUSTICE EBERSPACHER DELIVERED THE OPINION OF THE COURT:
This is an appeal by the petitioner, James Allen Buckholz, from an order entered by the circuit court of Madison County denying petitioner's request for post-conviction relief after an evidentiary hearing.
The petitioner was indicted for murder in the circuit court of Madison County. At his arraignment Austin Lewis, Public Defender of Madison County, was appointed to represent him. On November 13, 1961, petitioner appeared in trial court with his attorney and entered a plea of guilty. Counsel for the petitioner informed the trial court that he had explained to the petitioner his right to a trial and the punishment if found guilty. The trial court, after thoroughly admonishing the petitioner of his right to a trial and of the consequences of his plea, accepted the plea of guilty, adjudged him guilty of murder, and, after a hearing in aggravation and mitigation, sentenced the petitioner to life imprisonment in the penitentiary. The petitioner perfected a writ of error pro se to the supreme court. (People v. Buckholz, 32 Ill.2d 482, 484, 207 N.E.2d 451, 452.) The supreme court summarized the petitioner's contention in the following manner:
"Defendant contends he was coerced into pleading guilty because the prosecution had a confession which would insure defendant's conviction. He further contends that the confession was made after his request to consult with counsel was refused, and he urges the applicability of Escobedo v. State of Illinois, 378 U.S. 478, 12 L.Ed.2d 977, 84 S.Ct. 1758."
The petitioner did not raise any contention with respect to the incompetency of his appointed counsel. The supreme court affirmed petitioner's conviction by stating:
"The mere fact that the prosecution had in its possession an incriminating statement is not grounds for reversal of a conviction where defendant, with the assistance of counsel, knowingly and understandingly waived his right to a trial and pleaded guilty." 32 Ill.2d 482, 484, 207 N.E.2d 451, 453.
On December 31, 1970, the petitioner filed a pro se petition seeking post-conviction relief alleging that his plea of guilty was involuntary and that his rights were violated because he was not afforded a competency hearing prior to his plea. The petitioner did not raise any contention with respect to the incompetency of his appointed counsel. The petitioner also filed a "motion" requesting appointment of counsel other than the public defender. Although the record is unclear, apparently the public defender was appointed to defend the petitioner, since on January 26, 1971, it filed a motion to withdraw as petitioner's counsel on the ground that the petitioner did not want to be represented by that office. Notwithstanding its motion to withdraw as counsel the public defender office filed a motion seeking leave to file further post-conviction pleadings, which motion was allowed. In a lengthy letter to the petitioner, dated September 15, 1971, an assistant public defender expressed his "reluctant conclusion that the points you [the petitioner] asked to be raised are not well founded" and then gave the factors and reasons upon which he based this conclusion. In response to above letter, the petitioner, in a letter dated September 24, 1971, requested "the `entire' Public Defenders Office of Madison County, Illinois to withdraw from my case." On April 17, 1972, the public defender office through one of its counsel filed an amendment to petitioner's post-conviction petition. Therein, for the first time, it was alleged that petitioner's appointed trial counsel was incompetent.
On May 3, 1972, an evidentiary hearing was conducted on the petitioner's post-conviction petition and the amendment thereto. At the commencement of the evidentiary hearing the following colloquy occurred:
"THE COURT: I notice in the file some questions about counsel. You, Mr. Weber, did or did not formally withdraw? There was a motion to withdraw stating that you had some difficulties or differences of view with Mr. Buckholz personally as to the sufficiency of the allegations of the petition, is that correct?
MR. WEBER: Yes, Your Honor.
THE COURT: And a motion to withdraw was filed which I have in the file. I believe Mr. Buckholz had responded to your advising him, a copy of your letter to him is in the file stating fully your views regarding contentions in the petition, right?
MR. WEBER: That is correct, Your Honor.
THE COURT: Then what was your position on that, Mr. Buckholz? You needn't answer, you may confer with counsel or take any position you like on this.
MR. BUCKHOLZ: In regard to counsel's answer to Your Honor upon request my legal counsel did withdraw ...