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People v. Ross





Appeal from the Circuit Court of Cook County; the Hon. R. Eugene Pincham, Judge, presiding.


Defendant, Jerome Ross, also known as Donald Baske, appeals from the circuit court's dismissal of his pro se petition for post-conviction relief filed pursuant to section 122-4 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1983, ch. 38, par. 122-4). For the reasons set forth below, we affirm the dismissal.

Defendant was convicted by a jury of burglary (Ill. Rev. Stat. 1983, ch. 38, par. 19-1) and sentenced to an extended term of 14 years in the Illinois Department of Corrections. Defendant's conviction and sentence were affirmed by this court on direct appeal (People v. Baske (1984), 122 Ill. App.3d 1155) in an unpublished order pursuant to Supreme Court Rule 23 (87 Ill.2d R. 23). On December 12, 1983, defendant filed his pro se post-conviction petition alleging he was denied his right to due process of law because the judge who imposed the extended-term sentence of 14 years failed "to explain the extended term to him, the consequences, and inform him to whether or not he qualified to be sentenced to an extended term." Defendant also stated in his petition that he was indigent and requested that counsel be appointed to represent him.

On February 16, 1983, the trial court dismissed defendant's petition as without merit 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.) Defendant appeals from the dismissal of his petition. In this appeal, defendant does not challenge the trial court's conclusion that his petition was without merit. Rather, he argues only that section 122-2.1 is unconstitutional because it allows the dismissal of post-conviction petitions which are deemed to be without merit prior to the appointment of counsel. Defendant has advanced the following three grounds in support of his argument that section 122-2.1 is unconstitutional: (1) section 122-2.1 conflicts with Supreme Court Rule 651(c) (87 Ill.2d R. 651(c)) and, therefore, violates the separation of powers doctrine; (2) section 122-2.1 violates the equal protection doctrine; and (3) section 122-2.1 fails to comport with due process requirements.


• 1 We will initially address defendant's argument that section 122-2.1 conflicts with Supreme Court Rule 651(c), as amended November 30, 1984, effective December 1, 1984, and, therefore, violates the constitution's mandate of a separation of powers. Defendant asserts that Rule 651(c) indicates that counsel shall be provided for all indigent post-conviction petitioners, while section 122-2.1 permits the trial court to dismiss certain petitions summarily prior to the appointment of counsel.

We find no conflict existing between the two provisions. Section 122-2.1 establishes the following review procedure for post-conviction petitions:

"Dismissal order — Docketing — Examination of file of conviction proceedings.

(a) Within 30 days after the filing and docketing of each petition, 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." (Ill. Rev. Stat. 1983, ch. 38, pars. 122-2.1(a), (b).)

Rule 651(c) provides as follows:

"Appeals in Post-Convictions Proceedings.

(c) Record for Indigents; Appointment of Counsel. Upon the timely filing of a notice of appeal in a post-conviction proceeding, if the trial court determines that the petitioner is indigent, it shall order that a transcript of the record of the post-conviction proceedings, including a transcript of the evidence, if any, be prepared and filed with the clerk of the court to which the appeal is taken and shall appoint counsel on appeal, both without cost to the petitioner. The record filed in that court shall contain a showing, which may be made by the certificate of petitioner's attorney, that the attorney has consulted with petitioner either by mail or in person to ascertain his contentions of deprivation of constitutional right, has examined the record of the proceedings at the trial, and has made any amendments to the petitions filed pro se that are necessary for an adequate presentation of petitioner's contentions." (Supreme Court Rule 651(c), as amended (Nov. 30, 1983, eff. Dec. 1, 1984.)

It is apparent that the above provisions are intended to deal with different stages of the post-conviction process; section 122-2.1 pertains to the trial level, while Rule 651(c) concerns appellate procedure. Contrary to defendant's assertion, the language of Rule 651(c) does not require that counsel is ...

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