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People v. Carroll

OPINION FILED FEBRUARY 3, 1977.

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

v.

CLARENCE CARROLL, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. WALTER DAHL, Judge, presiding.

MR. JUSTICE ROMITI DELIVERED THE OPINION OF THE COURT:

On November 8, 1965, Clarence Carroll, hereinafter called petitioner, was found guilty after a bench trial of the offense of murder and was sentenced to not less than 30 years nor more than 60 years in the penitentiary. Petitioner appealed his conviction and this court affirmed the judgment and conviction. People v. Carroll (1968), 101 Ill. App.2d 142, 241 N.E.2d 629 (abstract opinion).

Petitioner subsequently filed a pro se petition pursuant to the Post-Conviction Hearing Act. Ill. Rev. Stat. 1971, ch. 38, par. 122-1 et seq.

On May 5, 1971, petitioner's post-conviction petition was dismissed. On June 4, 1973, the Illinois Supreme Court reversed and remanded the cause for further proceedings when the Attorney General confessed error on the appeal of that dismissal. (Reasons for the confession of error and reversal do not appear in the record before this court.)

The pro se conviction petition filed is a detailed one in which petitioner alleges what he conceives to be many constitutional errors. On March 27, 1974, additional counsel was appointed by the trial court.

On June 20, 1975, appointed counsel filed with the trial court, and read into the record, a letter dated June 13, 1975, a copy of which he had mailed to the petitioner. The letter read in pertinent part:

"I am writing this letter to inform you of the research and preparation concerning your pending post-conviction petition before Judge Dahl. I am sorry to inform you that it is the opinion of this office that you will not be successful in your efforts to gain reversal of your conviction by way of a post-conviction petition.

Your post-conviction petition is coming up on June 20, 1975 before Judge Dahl. He will be informed of my analysis of the case at that time * * *. However, it is our opinion that you would be wasting your and your attorney's time in that regard * * *."

On September 12, counsel, reiterating the position taken in his letter previously read into the record, informed the court that in his opinion there were "no issues of constitutional magnitude that could be couched in a petition for post-conviction relief and therefore no petition has been prepared and filed with the court for purposes of a proceeding."

The court dismissed the proceedings. Petitioner appeals from that dismissal.

The office of the State Appellate Defender was appointed to represent the petitioner on this appeal and has filed a motion to withdraw under Anders v. California (1967), 386 U.S. 738, 18 L.Ed. 493, 87 S.Ct. 1396, supported by a brief, on the grounds that an appeal from the denial of the post-conviction petition would be without merit and could not possibly be successful.

On October 26, 1976, a copy of the motion and brief was mailed to petitioner, allowing him until December 20, 1976 to file points he might choose in support of his appeal.

On December 10, 1976, petitioner filed, pro se, with the clerk of this court a document entitled "Brief and Memorandum In Support of Motion in Opposition To Appointed Counsel's Motion For Leave To Withdraw."

We have reviewed petitioner's motion and brief and are of the opinion that the points raised and arguments advanced therein are, in substance, the same as those raised in the petition for post-conviction relief filed in the trial court, with the exception that petitioner now raises the issue of ineffectiveness and incompetence of counsel on the initial appeal of his conviction. In this regard he alleges, inter alia, that "* * * the material facts were never fully developed in the appellate court," thus "* * * the petitioner did not receive a full, fair and adequate hearing in the appellate ...


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