Appeal from the Circuit Court of Macon County; the Hon. Rodney
A. Scott, Judge, presiding.
JUSTICE TRAPP DELIVERED THE OPINION OF THE COURT:
On October 20, 1982, the defendant, Robert Alexander, pleaded guilty to four counts of rape, four counts of burglary, four counts of home invasion, one count of armed violence and one count of deviate sexual assault. On October 3, 1984, Alexander filed a petition for post-conviction relief with respect to the convictions entered on the above guilty pleas. The petition alleged, in essence, that there was no basis for Alexander's initial detention and that he confessed to some of the offenses to which he ultimately pleaded guilty only after approximately five hours of "sometimes heated interrogation." According to the petition, the "information and facts" obtained by means of Alexander's illegal arrest, detention and interrogation were used to effect his guilty plea and were violative of Alexander's rights under the fourth, fifth, sixth, and fourteenth amendments to the United States Constitution (U.S. Const., amends. IV, V, VI, XIV) and under sections 2, 6 and 10 of article I of the Illinois Constitution (Ill. Const. 1970, art. I, secs. 2, 6, 10). The petition contained a prayer for an order finding that Alexander's initial arrest was illegal due to the lack of probable cause for the arrest. Alexander also requested that the court "order that [his] guilty plea be withdrawn" and that all evidence obtained pursuant to his allegedly illegal arrest be suppressed. The petition was accompanied by a motion requesting the appointment of counsel to represent Alexander in the proceedings on the petition and requesting that Alexander be furnished copies of the transcript and common law record of the proceedings which resulted in the guilty pleas without charge on the basis of Alexander's indigency.
On October 31, 1984, the State filed a motion to dismiss Alexander's petition. Relying on police reports, the State alleged that there was probable cause for Alexander's arrest; that at the time of Alexander's interrogation, he was advised of his rights and indicated that he understood them; and that Alexander at no time attempted to terminate the interrogation. The State also pointed out that Alexander was represented by privately retained counsel at the guilty plea proceedings, that Alexander's counsel did not file a motion to suppress evidence, and that at the time that he pleaded guilty, Alexander was "advised of his rights and knowingly waived those rights."
At a hearing held November 9, 1984, at which only the State was represented, the State requested that Alexander's petition be dismissed pursuant to section 122-2.1 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat., 1984 Supp., ch. 38, par. 122-2.1), which provides in pertinent part that within 30 days of the filing of a petition for post-conviction relief which the court finds to be frivolous or patently without merit in view of court files relating to the proceedings in the cause, the court shall dismiss the petition in a written order.
Following a further hearing held November 26, 1984, at which Alexander again was neither represented by counsel nor personally present, the court, on November 30, 1984, entered a written order finding that (1) the matters stated in Alexander's petition were not violative of his constitutional rights; (2) the judgment in the cause had been final for more than two years; (3) at the time of sentencing, Alexander was advised of his right to appeal his sentence and/or withdraw his guilty plea and did not pursue those remedies; (4) examination "of the transcript of the Defendant's sentencing" revealed that the basis of Alexander's guilty pleas was "factual evidence" including a palm print, as opposed to Alexander's admissions; (5) "the Defendant's counsel of choice stated that the Defendant made certain admissions in other pending criminal cases which were dismissed and further prosecution barred as part of the disposition in the above-captioned cases;" and (6) Alexander's petition is "frivolous and patently without merit."
The same judge who considered and dismissed Alexander's petition for post-conviction relief received Alexander's guilty pleas and imposed sentence on him.
Central to Alexander's contentions on appeal are the following sections of the Code of Criminal Procedure of 1963:
"(a) Within 30 days after the filing and docketing of each petition [for post-conviction relief], the court shall examine such petition and enter an order thereon pursuant to this Section. If the court determines the petition is frivolous or is patently without merit, it shall dismiss the petition in a written order, specifying the findings of fact and conclusions of law it made in reaching its decision. Such order of dismissal is a final judgment and shall be served upon the petitioner by certified mail within 10 days of its entry.
(b) If the petition is not dismissed pursuant to this Section, the court shall order the petition to be docketed for further consideration in accordance with Sections 122-4 through 122-6.
(c) In considering a petition pursuant to this Section, the court may examine the court file of the proceeding in which the petitioner was convicted, any action taken by an appellate court in such proceeding and any transcripts of such proceeding." Ill. Rev. Stat., 1984 Supp., ch. 38, par. 122-2.1.
"If the petition is not dismissed pursuant to Section 122-2.1, and alleges that the petitioner is unable to pay the costs of the proceedings, the court may order that the petitioner be permitted to proceed as a poor person and order a transcript of the proceedings delivered to petitioner in accordance with Rule of the Supreme Court." Ill. Rev. Stat., 1984 Supp., ch. 38, par. 122-4.
"All proceedings under this Article [the Post-Conviction Hearing Act] shall be conducted and all petitions shall be considered by a judge who was not involved in the original proceeding which resulted in conviction." (Ill. Rev. Stat., 1984 Supp., ch. 38, par. 122-8.)
Alexander asserts that because of (1) the trial court's failure to dismiss his petition within 30 days of its filing, (2) the consideration of Alexander's petition by the same judge who accepted his guilty pleas, and (3) the holding of hearings as to Alexander's petition in which only the State was allowed to participate, the proceedings which preceded dismissal of his petition failed to conform to requirements of sections 122-2.1 and 122-8 to the extent that reversal of the trial court's dismissal of the petition and remandment of the cause for further proceedings in the trial court is required.
Alexander finally contends that the statutes providing for dismissal of petitions for post-conviction relief prior to the appointment of counsel to represent the petitioner are unconstitutional because they conflict with a supreme court rule which Alexander asserts requires the appointment of counsel to represent all petitioners for post-conviction relief (87 Ill.2d R. 651(c)) and ...