Appeal from the Circuit Court of Cook County; the Hon. James
M. Bailey, Judge, presiding.
JUSTICE PERLIN DELIVERED THE OPINION OF THE COURT:
Rehearing denied January 8, 1985.
In 1977, Robert Jones (defendant) was convicted of the murders of Samuel and Campbell Thompson and sentenced to a term of 100 to 300 years in the Illinois Department of Corrections. Defendant's convictions and sentence were affirmed by this court in his direct appeal (People v. Jones (1980), 84 Ill. App.3d 896, 406 N.E.2d 112).
In February 1982, defendant filed a pro se post-conviction petition pursuant to the Post-Conviction Hearing Act (Act) (Ill. Rev. Stat. 1981, ch. 38, par. 122-1 et seq.). Simultaneously, defendant filed an indigency petition and motion for appointment of counsel in which he requested appointment of an attorney who is "a member of the Illinois Bar Association, definate [sic] not a Public Defender, for a [period] of at least five (5) years." The case was assigned to Judge Bailey, who had presided over defendant's trial. The State moved to dismiss the petition. Judge Bailey assigned the public defender's office to represent defendant.
In June 1983, defendant filed a pro se "Motion for substitution of Judge for Cause" wherein he alleged the trial court was prejudiced against him. The sole factual allegation therein was that the trial judge, when sentencing defendant following his trial in 1977, allegedly stated that he "hoped" defendant would die in prison or he "wanted" defendant to die in prison.
In August 1983, the public defender assigned to defendant's case filed, instanter, a motion for leave to withdraw as counsel. The motion stated that defendant had filed a complaint against counsel with the Attorney Registration and Disciplinary Commission in which he charged that she was "indifferent" to his post-conviction petition. The motion to withdraw further stated that the defendant's complaint "would make it difficult to continue to represent [defendant] in an unbiased and fair manner." Attached to the motion was a letter from the commission which advised counsel that the commission had decided "to proceed no further with this matter."
In support of her motion to withdraw, defense counsel related that she had met with defendant in prison, and that he thereafter refused to respond to a questionnaire she had given him. She stated further that she had been unable to locate a copy of defendant's trial transcript and that she had been advised that defendant had filed a Federal habeas corpus complaint "and for those reasons I would like to withdraw as counsel in this matter."
The court then granted counsel's motion to withdraw and without appointing substitute counsel dismissed defendant's post-conviction petition.
On appeal, defendant contends that he was denied adequate representation of counsel because defense counsel failed to comply with Supreme Court Rule 651(c), and because the court dismissed the petition at a time when defendant was without counsel.
The State contends that defendant was not denied adequate representation of counsel, but rather that defendant "refused to cooperate with the public defender properly appointed to represent him and that defense counsel's alleged failure to comply with Supreme Court Rule 651(c) was also the result of defendant's own lack of cooperation."
• 1 The relevant section of the Act effective at the time of the adjudication of defendant's petition provided:
"If the [post-conviction] petition alleges that petitioner is * * * without counsel and alleges that he is without means to procure counsel * * * [and] appointment of counsel is so requested, the court shall appoint counsel if satisfied that the petitioner has no means to procure counsel." (Ill. Rev. Stat. 1981, ch. 38, par. 122-4.)
Under the circumstances of the present case, defendant was entitled to appointment of counsel. People v. Dye (1971), 50 Ill.2d 49, 277 N.E.2d 133.
The duties of appointed counsel in post-conviction proceedings are addressed in Supreme Court Rule ...