APPEAL from the Circuit Court of Kankakee County; the Hon.
JOHN F. MICHELA, Judge, presiding.
MR. JUSTICE WEBBER DELIVERED THE OPINION OF THE COURT:
Defendant appeals from a denial of his amended petition for post-conviction relief. Ill. Rev. Stat. 1977, ch. 38, par. 122-1 et seq.
Following a bench trial in 1976, in the circuit court of Kankakee County, defendant was found guilty of murder in violation of section 9-1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1975, ch. 38, par. 9-1). A direct appeal was taken to the Appellate Court for the Third District, which affirmed. A single issue was raised on appeal, viz, excessiveness of sentence. The instant proceeding followed.
On the original appeal defendant was represented by the appellate public defender for the Third Appellate District. In the instant proceeding, both at the trial and appellate levels, defendant is represented by the same counsel who was appointed to represent him at the original trial. In these post-conviction proceedings defendant raises a single issue, viz, incompetency of appellate counsel in the original appeal.
Defendant finds such incompetency in the failure of appellate counsel to raise three issues on the original appeal as follows: (1) the purported failure of the trial court to consider the lesser-included offense of voluntary manslaughter, (2) whether the trial court assumed a position of advocacy against the defendant, and (3) whether the defendant was proved sane beyond a reasonable doubt. We agree with the trial court in these proceedings and affirm.
In view of defendant's contention, this entire proceeding will be governed by the leading case of People v. Frank (1971), 48 Ill.2d 500, 272 N.E.2d 25. In that case the supreme court laid down the rules governing the trial and review of post-conviction petitions which allege the incompetency of appellate counsel. The court noted that it is not the function of the statute to redetermine guilt or innocence and held that the doctrine of waiver ought not to apply where the alleged waiver stems from incompetency of counsel on appeal. The Frank court went on to say:
"We have concluded above that where necessary the Act may serve to vitiate the prejudice of waiver attendant upon incompetence of counsel on appeal, by serving as a vehicle for review of all directly appealable issues. Thus, whether Frank is entitled to review under the Act of the failure-of-proof issue, depends upon the determination of his allegation that failure to raise the issue on appeal constituted incompetence of his appointed counsel. We recognize no obligation of appointed counsel to brief every conceivable issue on appeal. It is not incompetence for counsel to refrain from raising those issues which in his judgment are without merit, unless his appraisal of the merits is patently wrong. [Citations.]" (48 Ill.2d 500, 504-05, 272 N.E.2d 25, 28.)
The court then stated that it had weighed the merits of the failure-of-proof issue in the proceeding before it and did not find it meritorious.
It therefore becomes the duty of this court in this case to examine the issues as briefed by counsel before this court in order to determine whether they are meritorious. In order to do that, we must have recourse to the report of proceedings at the original trial. Therefore, unless the context clearly indicates otherwise, references to the record herein are references to the proceedings at the original trial.
Before examining that original record, we note that there was an evidentiary hearing on the post-conviction petition at which both the appellate public defender and his assistant testified that the matters contained in the post-conviction petition had been considered at the time of the original appeal and rejected as not meritorious. Therefore, in the case at bar we are not dealing with an oversight but with a matter of professional judgment.
Defendant's first contention is that the trial court, sitting without a jury, did not consider the lesser included offense of voluntary manslaughter. Section 9-2 of the Criminal Code of 1961 (Ill. Rev. Stat. 1975, ch. 38, par. 9-2) recognized two varieties of manslaughter. Section 9-2(a) referred to "a sudden and intense passion resulting from serious provocation." (Ill. Rev. Stat. 1975, ch. 38, par. 9-2(a).) Defendant makes no claim that the trial court did not consider this section. Defendant admits that the trial court referred to serious and intense passion in making its ruling.
However, defendant then draws a negative inference that since the trial court made no direct mention or paraphrase of section 9-2(b), it ignored that section. Section 9-2(b) provided:
"A person who intentionally or knowingly kills an individual commits voluntary manslaughter if at the time of the killing he believes the circumstances to be such that, if they existed, would justify or exonerate the killing under the principles stated in Article 7 of this Code, but ...