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People v. Perez

OPINION FILED MAY 31, 1983.

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

v.

DAVID PEREZ, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. Maurice D. Pompey, Judge, presiding.

PRESIDING JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:

Following a bench trial, defendant, David Perez, was convicted of murder (Ill. Rev. Stat. 1981, ch. 38, par. 9-1(a)), attempt (murder) (Ill. Rev. Stat. 1981, ch. 38, par. 8-4), and two counts of armed violence (Ill. Rev. Stat. 1981, ch. 38, par. 33A-2). At the time of the incident which led to his conviction, defendant was 16 years old. Following his conviction, defendant was sentenced to terms of imprisonment consisting of concurrent terms of 35 years for murder and 10 years for armed violence; consecutive to concurrent terms of 15 years for attempt (murder) and 10 years for armed violence.

Defendant was sentenced on July 15, 1980, after his motion for a new trial was denied. On July 29, 1981, defendant filed a post-conviction petition pursuant to the Post-Conviction Hearing Act (Act) (Ill. Rev. Stat. 1981, ch. 38, par. 122-1 et seq.). Defendant requested that the trial court appoint the State Appellate Defender to prosecute the appeal of his conviction and that he be allowed to file a late notice of appeal. The State's motion to dismiss defendant's post-conviction petition was denied. Defendant was granted leave to file a notice of appeal. The State appeals the trial court's order granting defendant's post-conviction relief. Both appeals have been consolidated in this court.

These appeals present the following issues: (1) whether the trial court acted properly by granting defendant's post-conviction relief and denying the State's motion to dismiss defendant's petition; (2) whether the trial court erred by reviewing the pretrial transcript during the trial; and (3) whether the trial court abused its discretion by sentencing defendant to consecutive terms of imprisonment.

The underlying facts of this case show that Wilfredo Dones, age 17, and his girlfriend, Bernice Pagan, age 16, were walking from the Kenmore playground at Belmont and Kenmore Streets in Chicago at about 10 p.m. on August 5, 1978, when two men approached them from behind. One of the men, later identified as defendant, pulled a gun and shot Dones in the head from a distance of about three feet. The defendant then turned to Pagan and at point blank range shot her in the face. Dones died three days later. After surgery and extensive medical treatment, Pagan recovered from her wound.

Following an investigation of the incident, defendant was arrested. He was represented throughout the proceedings by a court-appointed attorney. The case was transferred from the juvenile court. (Ill. Rev. Stat. 1981, ch. 37, par. 702-7.) Defendant's motions to quash his arrest and suppress identification testimony were heard and denied by Judge Frank Wilson. Thereafter, Judge Wilson retired. This cause was then heard by Judge Maurice D. Pompey. During the initial stages of the trial, the State suggested that Judge Pompey review the pretrial transcript in order to familiarize himself with matters of evidence previously decided by Judge Wilson. Over defendant's objection, Judge Pompey reviewed the pretrial transcript and then proceeded with the trial. At the conclusion of the trial, defendant was found guilty of murder, attempt (murder) and two counts of armed violence.

On July 15, 1980, defendant filed a post-trial motion for a new trial, asserting general violations of his constitutional rights. Defendant's post-trial motion was denied and sentence was pronounced. The trial court admonished defendant regarding his right to appeal and to have counsel appointed for appeal. When defendant's trial counsel indicated that he could not represent defendant on appeal, the following colloquy occurred:

"THE COURT: So that the record is clear, are you requeting [sic] today for the court to appoint the Public Defender as your attorney for the purpose of appeal, Mr. Perez?

THE DEFENDANT: Yes.

THE COURT: Very well, the Public Defender is appointed * * *."

The record does not show any further activity regarding defendant's appeal until March 30, 1981, when defendant filed, pro se, a letter with the trial court indicating that he had not received notice from the public defender regarding his appeal. Defendant requested that the trial court investigate the status of his appeal. The record next indicates that a post-conviction petition, signed by defendant, was filed pursuant to the Act. Defendant was once again represented by the attorney who had represented him at trial for the purpose of the post-conviction proceedings. Defendant's petition requested that the State Appellate Defender be appointed to prosecute defendant's appeal and that the Appellate Defender be allowed to file a late notice of appeal. The State responded with a motion to dismiss defendant's post-conviction petition, contending that no constitutional issue was raised by the petition, thereby precluding relief under the Act.

A hearing was held on April 17, 1981, following which the trial court granted defendant's petition and allowed the Appellate Defender 30 days to file a notice of appeal on defendant's behalf. The State appealed (No. 82-770) the trial court's order denying the State's motion to dismiss defendant's post-conviction petition. Defendant challenges his conviction (No. 81-3117), asserting as error: (1) that he was prejudiced by the trial court's review of the pretrial transcript, and (2) that the trial court should have imposed concurrent rather than consecutive terms of imprisonment in light of defendant's youth, lack of criminal past and potential for rehabilitation.

I

• 1 At the outset, we consider the issue raised by the State's challenge to the November 17, 1981, trial court order which allowed defendant to file his notice of appeal 17 months after his conviction. *fn1 The State argues that defendant's post-conviction petition fails to present a constitutional issue and, therefore, is not subject to ...


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