APPEAL from the Circuit Court of Will County; the Hon. MICHAEL
A. ORENIC, Judge, presiding.
MR. JUSTICE STENGEL DELIVERED THE OPINION OF THE COURT: Defendant Ellis Partee appeals from the dismissal of his petition under the Post-Conviction Hearing Act (Ill. Rev. Stat. 1979, ch. 38, par. 122-1 et seq.).
Partee was convicted of two separate armed robberies following jury trials and received two concurrent sentences of 8 to 15 years imprisonment. On direct appeal this court affirmed the convictions and sentences, rejecting defendant's sole argument, that the sentences were excessive. People v. Partee (1975), 29 Ill. App.3d 423, 331 N.E.2d 111.
Subsequently, on November 9, 1976, defendant filed in the trial court a pro se post-conviction petition along with a motion for appointment of counsel and an affidavit in support of the motion. The petition alleged that appointed counsel on direct appeal was incompetent; that, over defendant's objections, only his sentence was appealed, and that various errors had been committed at trial. The court appointed Attorney Charles Hahn to represent defendant in connection with his post-conviction petition. After reading the record and consulting with defendant, Hahn filed a motion to withdraw the pro se post-conviction petition without prejudice on December 27, 1976. In a letter to defendant dated the following day, Hahn told defendant the motion was filed as agreed. The letter also indicated Hahn's intention to investigate the matter further. On December 30, 1976, the motion was allowed.
At this point the record becomes rather confusing. On July 5, 1977, a letter from defendant to Hahn dated January 24, 1977, was filed in the trial court along with materials concerning a Federal civil suit defendant had brought against officials of the Pontiac Correctional Center under 42 U.S.C. § 1983 (1976). The suit involved alleged mistreatment of defendant at the prison. In the letter defendant stated he was sending the material so that Hahn could "get an understanding of * * * what I need help with."
The next item in the record is the following entry in the docket sheet dated February 2, 1978:
"Petition filed. Attorney Charles Hahn appointed to represent the petitioner * * *."
On February 6, 1978, more materials concerning defendant's Federal civil suit against correctional officials were filed. A docket sheet entry of the same date indicates that the letter and papers captioned "In the U.S. District Court" were returned to defendant with the suggestion that he forward them to that court.
On May 4, 1978, a letter from defendant to a judge of the circuit court was filed. The letter requested action on defendant's petitions under the Post-Conviction Hearing Act and for habeas corpus. Shortly thereafter a hearing was conducted. Hahn appeared on behalf of defendant who was not present. At the hearing the trial judge described the letter he received from defendant seeking action on his petitions. The court expressed some confusion about the February 2, 1978, docket sheet entry indicating that a petition was filed, and that Hahn was appointed to represent defendant. Said the court:
"I don't know of anything that was pending except that I must have had something from [defendant] to bring the matter up."
Hahn informed the court that he wrote defendant a letter on February 28, 1978, asking him to explain what action he wanted taken. According to Hahn, defendant's letter in reply had nothing to do with the petition for post-conviction relief. Said Hahn:
"All it said was that he knew I had withdrawn it without prejudice as per our agreement * * *; because I explained to him that a post-conviction couldn't give him relief from incompetency of his public defender on appellate level * * *."
The court indicated it had no record of a petition for habeas corpus or a petition under the Post-Conviction Hearing Act other than the one that had been withdrawn. Hahn replied that he did not know of any other post-conviction petition. Shortly thereafter the following colloquy occurred:
"THE COURT: * * * [H]as [defendant] ever given you any information which would enable you to file a post-conviction in this court regarding the deprivation of ...