APPEAL from the Circuit Court of Cook County; the Hon. ROBERT
A. MEIER, III, Judge, presiding.
MR. JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:
Rehearing denied November 22, 1978.
Thomas Stewart, defendant, was found guilty of armed robbery on November 29, 1971, after a jury trial in the criminal court of Cook County. He was sentenced to a term of two to eight years. On direct appeal we affirmed this conviction and sentence (People v. Stewart (1st Dist. 1974), 24 Ill. App.3d 605, 321 N.E.2d 450.) Leave to appeal to the Illinois Supreme Court was denied. People v. Stewart (1975), 58 Ill.2d 595.
Defendant then filed a post-conviction petition which was later amended. After an evidentiary hearing before the same trial court judge, the amended petition was denied. It is from this judgment that defendant now appeals.
The issues on appeal are: (1) whether defendant was denied his constitutional right to effective assistance of counsel at the original trial; (2) whether the trial court erred in rejecting a confession of error made by the state's attorney of Cook County; and (3) whether the post-conviction hearing was conducted in such a manner as to deny defendant due process of law.
The detailed facts involved in the armed robbery are set forth in our first opinion, People v. Stewart (1st Dist. 1974), 24 Ill. App.3d 605, 321 N.E.2d 450. Briefly, defendant was convicted of the armed robbery at the rectory of the Our Lady of the Mount Catholic Church in Cicero, Illinois. A co-defendant in the original trial, Stephen Sedlacko, was never tried. Both were represented by the same trial attorney, S. Thomas Sutton. However, on the direct appeal, defendant was represented by attorney Louis M. Leider.
On April 19, 1975, defendant filed a petition for post-judgment relief under the Post-Conviction Hearing Act (Ill. Rev. Stat. 1975, ch. 38, pars. 122-1 through 122-7) and section 72 of the Civil Practice Act (Ill. Rev. Stat. 1975, ch. 110, par. 72). The petition was subsequently amended to also include a plea under the Habeas Corpus Act. (Ill. Rev. Stat. 1975, ch. 65, pars. 1 through 36.2.) In essence, the amended petition sought to set aside defendant's judgment and sentence on the following grounds: (1) that defendant's attorney at the trial level, S. Thomas Sutton, had planned the crime for which defendant was convicted, that Sutton represented both defendant and co-defendant, Sedlacko, and therefore defendant was denied his constitutional right to effective assistance of counsel; (2) that the failure of Chicago police officer Nolan to disclose to the prosecution evidence within the officer's control bearing upon defendant's innocence deprived him of due process of law; and (3) that these facts first became known in April or May of 1975.
In his amended petition, defendant alleged that the robbery at the church rectory was committed by persons acting on behalf of the Legion of Justice; that Sutton was significantly responsible for Legion activities and was the "master mind" of the robbery; that Sedlacko admitted under oath his participation in the rectory robbery with another whose physical characteristics were similar to those of defendant; that the defendant never participated in the robbery; that at Sutton's direction Sedlacko absented himself from the defendant's trial; that Chicago police officer Nolan, who at the trial identified a joint photograph of the defendant and Sedlacko, knew that defendant did not participate in the robbery; and that Sutton's conflict of interest in representing both defendant and Sedlacko was never fully disclosed to or understood by defendant, and that these facts first became known to defendant in April or May 1975.
At the time of the post-conviction hearing, attorney Sutton was deceased. Defendant's attorney served subpoenas on four Chicago police officers to appear at the hearing. The trial court reserved ruling on a motion to quash the subpoenas by attorneys Harry J. Busch and Warren D. Wolfson who appeared as special assistant corporation counsel of the City of Chicago. The trial court, however, permitted attorneys Busch and Wolfson to participate in the hearing. These two attorneys took an active part in the hearing over the objection of the defendant. It does not appear in the record whether the state's attorney took a position with respect to this procedure. In any respect the hearing proceeded with the unusual cast of attorneys: the state's attorney, defendant's attorney, and two attorneys not representing a party in the action.
At the hearing, defendant testified that he was a member of the Legion of Justice, an organization of which Sutton was the leader and described as an intelligence organization that worked gathering information for a number of governmental agencies. Defendant admitted participating in the planning of the robbery with Sutton, Sedlacko, and police officer Nolan; that Nolan checked out the security system at the church and rectory; that the defendant did not participate in the robbery; that after he was indicted, Sutton told him Sedlacko would appear on his behalf; that Sutton would not allow him to testify at the trial; that he participated in several other Legion of Justice breakins and robberies at Sutton's direction; and that he was paid by Sutton who also represented him on several criminal charges. Defendant testified that he attended Legion meetings with his brother and Sedlacko even though at the trial his brother denied that defendant and Sedlacko were acquainted. Defendant also admitted participating in a robbery with Sedlacko approximately 24 hours after the instant robbery.
Defendant acknowledged he had been in contact with Sedlacko until the latter jumped bail; that he next visited Sedlacko in December 1974 *fn1; and that after he learned in March 1975 that his conviction was affirmed, he talked with Sedlacko several times about vacating the conviction. Defendant testified that he did not know until March or April of 1975 that Sutton had allegedly directed Sedlacko to leave the jurisdiction; and that one week before the trial Sutton told defendant's brother not to mention the Legion of Justice.
Co-defendant Sedlacko testified that Sutton placed him in charge of the rectory robbery and supplied four other men for the job, one of whom had the same color of hair and similar build as defendant; that defendant drove around with him to survey the church area; that Sutton planned to have separate trials, trying the defendant first since it was Sutton's belief that the State could not prove defendant guilty, and this would benefit Sedlacko at his trial; that after the robbery he told the police where defendant could be found; that after defendant was arrested, Sutton put up his bond; and that Sutton told Sedlacko to leave the jurisdiction and gave him $2,000 and two sets of identification.
Sedlacko further testified that after he returned to his jurisdiction he met with defendant's attorney and the state's attorney; that he was granted immunity in return for his testimony before the grand jury regarding Legion activities; and that he knew, as did some police officers, that defendant was not at the robbery. Sedlacko's cross-examination was interrupted when the case was continued. Thereafter a motion to strike Sedlacko's testimony by attorneys Busch and Wolfson was allowed. The record does not clearly indicate if Sedlacko's testimony was reinstated.
Thereafter the state's attorney submitted a confession of error on the grounds that defendant was denied effective assistance of counsel because of Sutton's own participation in the crime and the conflict of interest inherent in his representation of both defendant and Sedlacko. Thereupon the attorney general replaced the state's attorney on behalf of the State.
The trial court denied the petition and at that time indicated that although the State made a confession of error, the court did not consider the same binding upon the court, but rather must consider the facts and the law applicable to the case. The trial court found that attorney Sutton had tried the case vigorously and energetically, that the defendant was aware of Sutton's relationship with Sedlacko and with the Legion of Justice, and that the defendant had a fair trial and the effective assistance of counsel. The trial court further noted that even if defendant's testimony was taken as true, his admissions on the witness stand would make him guilty under the principles of accountability.
While this appeal was pending, the State moved to dismiss the appeal upon defendant's failure to file excerpts pursuant to Supreme Court Rule 342. (Ill. Rev. Stat. 1977, ch. 110A, par. 342.) That motion is pending before this court. Also during the appeal, defendant's attorney Louis Leider died after filing a brief on behalf of defendant. Leave was allowed defendant's present appellate attorney to file a supplemental brief.
• 1 We first consider whether defendant is entitled to relief under section 72 of the Civil Practice Act. (Ill. Rev. Stat. 1977, ch. 110, par. 72.) The purpose of a section 72 petition is to permit the vacation of judgments where facts existed which, had they been known at the time judgment was entered, would have prevented its rendition. (People v. Hinton (1972), 52 Ill.2d 239, 243, 287 N.E.2d 657; see also People v. Touhy (1947), 397 Ill. 19, 24, 72 N.E.2d 827.) It must be a fact which influenced the court in its judgment but concerning which the court was in error. (Leighton, Post-Conviction Remedies in Illinois Criminal Procedure, 1966 U. Ill. L.F. 540, 566.) It must be demonstrated that the error of fact was not and could not have been discovered at the time of the original proceeding. People v. Jennings (1971), 48 Ill.2d 295, 298, 269 N.E.2d 474; Place v. Place (2d Dist. 1971), 132 Ill. App.2d 124, 126, 266 N.E.2d 170; Weaver v. Bolton (2d Dist. 1965), 61 Ill. App.2d 98, 104-05, 209 N.E.2d 5.
• 2, 3 Section 72 is an appropriate remedy where the omission of a valid defense was caused by fraud, duress, or excusable mistake. (People v. Touhy, at 24-25; People v. Hinton.) However, the Illinois Supreme Court has consistently held that in order for a petitioner to avail himself of section 72 relief, he must not only show adequate grounds for relief exist, but also that, through no fault or neglect of his own, the error of fact or the existence of a valid defense was not made to appear at the trial. Such petition is not intended to relieve a party from the consequences of his own mistake or negligence. People v. Jennings (1971), 48 Ill.2d 295, 298, 269 N.E.2d 474; People v. Bracey (1972), 51 Ill.2d 514, 521, 283 N.E.2d 685.
The record indicates that the only fact not known to defendant at the time of trial was that Sutton allegedly instructed Sedlacko to leave the jurisdiction. Defendant maintains that Sedlacko was to testify in defendant's behalf at the trial. At the hearing defendant testified that both Sutton and Officer Nolan knew he was not present at the robbery. Yet defendant made no attempt to bring this out at his original trial. Instead defendant chose to rely solely on his family to present an alibi defense which in part was discredited during the instant proceeding.
We find no basis for supposing that the testimony of Sedlacko would have controlled the result in regard to the trial court's finding of defendant's culpability. At trial, two priests, victims of the robbery, positively identified defendant as one of the perpetrators. This ...