Appeal from the Circuit Court of Cook County; the Hon. Robert
J. Collins, Judge, presiding.
JUSTICE JOHNSON DELIVERED THE OPINION OF THE COURT:
Plaintiff, the People of the State of Illinois, appeals the trial court's grant of a new trial to defendant, Anthony Martin-Trigona, in a post-conviction proceeding. The following issues are presented for review: (1) whether the trial court had jurisdiction to entertain defendant's petition; (2) whether defendant's petition was sufficient; (3) whether the admission of defendant's prior Federal uncounseled conviction at his bench trial was proper; and (4) assuming arguendo that the admission of the conviction constituted error, whether it was harmless beyond a reasonable doubt.
This is the second appeal in this matter. On November 2, 1980, after a bench trial, defendant was convicted of three counts of forgery and four counts of theft. At trial, the prosecution had introduced a certified copy of defendant's Federal conviction for mail fraud. Defendant was given a three-year sentence to be served concurrently with his Federal sentence.
On July 16, 1982, the United States Court of Appeals for the Seventh Circuit reversed defendant's Federal mail fraud conviction on the ground that he had been denied assistance of counsel in violation of the sixth amendment to the United States Constitution by being required to defend himself pro se (United States v. Martin-Trigona (7th Cir. 1982), 684 F.2d 485, 490). On December 16, 1982, this court affirmed the State conviction, with one judge dissenting. We remanded the cause for resentencing because the trial court had considered defendant's Federal conviction in deciding upon a sentence. (People v. Martin-Trigona (1982), 111 Ill. App.3d 718, 444 N.E.2d 527.) We denied defendant's petition for rehearing on January 18, 1983.
On January 20, 1983, the United States Attorney for the Central District of Illinois filed a motion to dismiss the indictment against defendant, and the motion was granted. On June 20, 1983, defendant filed a petition for post-conviction relief, asking that his State conviction be vacated. The State's Attorney moved to dismiss the petition.
At a hearing on the matter, which was held on September 29, 1983, the trial judge who presided over defendant's trial stated the following:
"THE COURT: Well, there is no question that this was a troublesome case, for me at least. I had a businessman before me and I found him guilty of serious felony offenses, which is certainly not helpful to him in the future. And, there were all sorts of indications that this was a dispute between businessmen. Why Mr. Trigora [sic] decided to cash his check and appropriate the proceeds of it, I don't know.
But, whatever his motives, I decided that they were criminal, but I cannot deny the fact that I allowed this conviction in evidence for the purpose of impeachment, offered by the State, and the State was correct in offering it.
I tell you, I was even, at the time, I was somewhat taken aback that the circumstances surrounding Mr. Trigora's [sic] conviction in the Federal Court and the sentence, believe was twelve year sentence, I didn't know what to make of it.
In any event, the law is or was still is that where a case is pending on appeal, I can consider that conviction by way of impeachment. However, now that it has been reversed, sent back for a new trial, and then the Federal government says, I am going to dismiss the case and not have a second trial.
Now, we have that conviction that I considered, hanging out there. It's an embarrassment to me. I really don't know, it was a long time ago. I really don't know, I thought the evidence was very persuasive, very substantial. And, on the other hand,
I don't want to deny Mr. Trigora [sic] an opportunity to find a judge who is unaffected ...