Appeal from the Circuit Court of Cook County; the Hon. William
Cousins, Jr., Judge, presiding.
JUSTICE HARTMAN DELIVERED THE OPINION OF THE COURT:
Defendant, convicted by a jury of attempted murder, two counts of aggravated battery and armed violence (Ill. Rev. Stat. 1979, ch. 38, pars. 8-4, 12-4(a), 12-4(b)(1), 33A-2), was sentenced to two concurrent 20-year terms of imprisonment for attempted murder and armed violence. Pursuant to Supreme Court Rule 23 (87 Ill.2d R. 23) his convictions were affirmed (People v. Goodman (Porter) (1982), 108 Ill. App.3d 1209) after this court granted leave to the Cook County public defender to withdraw as counsel on appeal pursuant to Anders v. California (1967), 386 U.S. 738, 18 L.Ed.2d 493, 87 S.Ct. 1396.
On July 12, 1984, defendant pro se filed a petition for post-conviction relief, claiming: misidentification by the complaining witness; improper jury instructions on murder were given; a Bruton violation (Bruton v. United States (1968), 391 U.S. 123, 20 L.Ed.2d 476, 88 S.Ct. 1620); prosecutorial misconduct; and ineffective assistance of appellate counsel. In addition, he filed an affidavit in forma pauperis and requested that counsel be appointed to represent him on his petition.
On June 19, 1984, the following proceedings took place in the circuit court:
"THE CLERK: Aaron Porter.
THE COURT: This is a P.C. also. And what the Court will do is to ask the Public Defender to take a look at this P.C. The Court will pass this matter at this time.
(WHEREUPON, further proceedings in the above-entitled cause were passed, the regular call was heard, after which the following proceedings in the above-entitled cause were had, towit:)
THE CLERK: Aaron Porter and Donald Price.
THE COURT: All right. The Post Conviction Petitions of Aaron Porter and Donald Price will be dismissed."
The memorandum of court orders (half-sheet) stated that on June 19, 1984, the parties were present and the post-conviction petition was dismissed. No mention appears in the record of any participation by the public defender in the proceedings.
Defendant contends first that he was denied the effective assistance of counsel on his post-conviction petition. He had requested and was appointed counsel, who did not comply with the provisions of Supreme Court Rule 651(c) (87 Ill.2d R. 651(c)) in that no showing was made in the post-conviction petition that the attorney had consulted with defendant either by mail or in person to ascertain his contentions of deprivation of constitutional rights, nor had he examined the record of the proceedings at the trial or made any amendments to the petitions filed pro se that may have been necessary for an adequate presentation of defendant's contentions.
Section 122-2.1 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat., 1983 Supp., ch. 38, par. 122-2.1(a)) (Code) provides in relevant part that the court shall examine the petition within 30 days of its filing and docketing. If the court finds the petition to be frivolous or patently without merit, the court shall dismiss the petition in a written order, specifying the findings of fact and conclusions of law it made in reaching its decision. The court will appoint counsel to represent defendant only when a petition is not dismissed pursuant to section 122-2.1.
• 1 Nothing in the record reveals that the circuit court appointed the public defender to represent defendant, nor that the public defender in fact examined defendant's petition. There is no showing that he participated in the court proceedings in any way. Nor did he identify himself on record as attorney for defendant. Counsel's silence at the hearing is not indicative of his failure to represent defendant effectively, as defendant contends; rather, his lack of interaction is attributable only to the fact that he was never appointed by the court to represent defendant, and that under the provisions of the Code the circuit court ...