Appeal from the Circuit Court of Cook County; the Hon. John W.
Crilly, Judge, presiding.
JUSTICE MCMORROW DELIVERED THE OPINION OF THE COURT:
Defendant, Kevin Wilson, appeals from the trial court's dismissal of his petition for post-conviction relief pursuant to the Illinois Post-Conviction Hearing Act (the Act) (Ill. Rev. Stat. 1985, ch. 38, par. 122-1 et seq.). He raises the following questions for our review.
1. Whether the trial court's failure to rule upon the frivolity or patent lack of merit of the defendant's petition within 30 days of its filing and docketing rendered the court's dismissal order void or reversible error;
2. Whether the trial court's failure to state specific factual findings and legal conclusions in its written order dismissing defendant's post-conviction petition on the ground that it was "without legal foundation" rendered the dismissal order void or reversible error;
3. Whether the trial court's determination that the petition was without merit was erroneous;
4. Whether the Act's provision that the court shall determine the frivolity or lack of merit to a defendant's petition prior to appointment of counsel: (a) conflicts with Illinois Supreme Court Rule 651(c) (103 Ill.2d R. 651(c)) thereby impermissibly infringing upon the power of the judiciary; (b) violates the defendant's due process right to meaningful access to the courts; and (c) violates the defendant's right to equal protection of the laws.
For the reasons set forth more fully below, we reverse and remand.
Following a jury trial, defendant was convicted of murder and armed robbery and sentenced to concurrent terms of 40 and 30 years' incarceration for those respective offenses. His conviction and the sentences imposed therefor were subsequently affirmed on appeal. (People v. Wilson (1985), 131 Ill. App.3d 1164 (order pursuant to Rule 23).) During the pendency of the appeal, on January 5, 1984, defendant filed a pro se petition for post-conviction relief from these convictions, alleging that he was denied effective assistance of counsel at trial. Specifically, the petition claimed that defendant's trial attorney denied him effective assistance of counsel in that:
"a) His trial counsel never visited him in jail although he assured petitioner by phone they would have many visits prior to trial.
b) His trial counsel never tried to get in touch with his witnesses although he assured him he would.
c) His trial counsel never made an effort to check on or get certain evidence which would have helped establish his defense, i.e.,
1) That petitioner had been hired by the Chicago Police Department as a custodian the same morning that the crime took place. Trial counsel told petitioner this could not be proven and when petitioner told him he had been fingerprinted and photographed, trial counsel told him it did not make any difference where he was or what he was doing that morning.
2) Petitioner told trial counsel he had received $7000 ten days before the crime and therefore had no motive to rob anyone but this fact was not proven.
3) Although it had always been the plan that petitioner would testify in his own behalf, trial counsel waited until the day of trial to change that strategy and tell petitioner he would not testify.
4) Trial counsel tried to get petitioner to plead guilty although petitioner had fired his first attorney for trying to do that."
Defendant also requested in the petition that counsel be appointed to represent him and that the court conduct a hearing on his petition. His request for counsel was supported by an affidavit of indigency.
The half sheet indicates that the cause was docketed on February 21, 1984, and on February 29, 1984, the cause was transferred from the presiding judge of the division to a judge other than the judge who presided over the trial. Thereafter, on April 12, the trial court entered an order which dismissed defendant's post-conviction petition. This order stated, in pertinent part:
"WHEREAS: The court being advised in the premises, and finding that the petitioner sets forth no grounds for legal relief
THEREFORE: It is ordered that Petitioner's motion for post conviction relief be denied, and the same is dismissed."
The transcript of the court's oral pronouncement on the matter on April 12 sets forth no additional reasons for dismissal. Instead it is in substance virtually identical to the language of the court's written order. The record indicates that there were "no appearances" by any party before the court when it made its oral pronouncement.
Defendant's late notice of appeal to this court was allowed, and this appeal followed.
The arguments raised by the defendant in the case at bar call upon this court to interpret several substantial amendments to the PCHA adopted by the Illinois legislature in 1983. (See Pub. Act 83-942; 1983 Ill. Laws 6200.) These amendments have already been the subject of judicial review in this State. (See People v. Joseph (1986), 113 Ill.2d 36; People v. Ruiz (1985), 107 Ill.2d 19, 479 N.E.2d 922; People v. Price (1986), 144 Ill. App.3d 949 (First District, 3rd Division); People v. Cooper (1986), 142 Ill. App.3d 223, 491 N.E.2d 815 (Fourth District); People v. Brown (1986), 142 Ill. App.3d 139, 491 N.E.2d 486 (Fifth District); People v. Porter (1986), 141 Ill. App.3d 208, 490 N.E.2d 47 (First District, 2nd Division); People v. Swearingen (1986), 140 Ill. App.3d 93, 488 N.E.2d 324 (Fourth District); People v. Ross (1985), 139 Ill. App.3d 674, 487 N.E.2d 1137 (First District, 1st Division); People v. Baker (1985), 138 Ill. App.3d 638, 486 N.E.2d 331 (Fourth District); People v. Ramsey (1985), 137 Ill. App.3d 443, 484 N.E.2d 555 (Fourth District); People v. Alexander (1985), 136 Ill. App.3d 1047, 483 N.E.2d 1039 (Fourth District); People v. Cox (1985), 136 Ill. App.3d 623, 483 N.E.2d 422 (First District, 5th Division); People v. Churchill (1985), 136 Ill. App.3d 123, 482 N.E.2d 355 (Third District); People v. Baugh (1985), 132 Ill. App.3d 713, 477 N.E.2d 724 (Fourth District); see also People v. Mason (1986), 145 Ill. App.3d 218 (First District, 4th Division).) In view of the fact that these decisions reflect divergent and disparate views and the fact that conflicting decisions have been reached by other appellate courts in this State on the issues before this court (see e.g., People v. Chest (1986), 112 Ill.2d 561, Simon, J., dissenting from denial of leave to appeal), we find it appropriate to set forth in some detail the procedures established in the PCHA prior to the 1983 amendments, the manner in which these procedures are altered by the 1983 amendments, and the purposes of the PCHA and its 1983 amendments, prior to a consideration of the specific questions raised by the defendant in this appeal.
The Post-Conviction Hearing Act was originally enacted by the Illinois legislature in 1949. (See Public Act 1949, p. 722, sec. 1.) The objective of the Act is to provide an effective, post-trial forum to "[a]ny person imprisoned in the penitentiary who asserts that in the proceedings which resulted in his conviction there was a substantial denial of his rights under the Constitution of the United States or of the State of Illinois or both." (Ill. Rev. Stat. 1985, ch. 38, par. 122-1; see, e.g., People v. Correa (1985), 108 Ill.2d 541, 485 N.E.2d 307.) Thus the Act is "designed to afford to the convicted an opportunity to inquire into the constitutional integrity of the proceedings in which the judgment was entered. [Citation.]" People v. Pier (1972), 51 Ill.2d 96, 98, 281 N.E.2d 289.
The Act is the result of United States Supreme Court's decisions in which the Supreme Court found inadequate the Illinois common law remedies that were available, prior to adoption of the Act, to redress a defendant's claims of deprivation of Federal constitutional rights. In fact in his concurring opinion in Marino v. Ragen (1947), 332 U.S. 561, 92 L.Ed. 170, 68 S.Ct. 240, Justice Rutledge remarked that these former remedies constituted "the Illinois merry-go-round of habeas corpus, coram nobis, and writ of error." (332 U.S. 561, 570, 92 L.Ed. 170, 176, 68 S.Ct. 240, 245; see also People v. Slaughter (1968), 39 Ill.2d 278, 282-85, 235 N.E.2d 566.) "It was a rigid application of these remedies that prompted the Supreme Court's [decisions], ...