APPELLATE COURT OF ILLINOIS, SECOND DISTRICT
503 N.E.2d 835, 151 Ill. App. 3d 940, 104 Ill. Dec. 973 1987.IL.67
Appeal from the Circuit Court of Du Page County; the Hon. Robert A. Nolan, Judge, presiding.
JUSTICE INGLIS delivered the opinion of the court. NASH and REINHARD, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE INGLIS
On August 26, 1982, the defendant, Michael Roy, a/k/a James Sheridan (the defendant), appeared before Judge Robert Nolan and pleaded guilty to one count of armed robbery in cause No. 82 CF 919 and one count of escape in cause No. 82 CF 941. Judge Nolan sentenced defendant to concurrent prison sentences of 15 years and 5 years in accordance with a plea agreement. Defendant was represented by an assistant public defender.
On July 22, 1985, defendant filed a pro se post-conviction petition wherein he asserted that his guilty plea was induced by an unfulfilled plea agreement, that his plea was coerced by an unconstitutional pretrial detention, and that he was afforded ineffective assistance of counsel. On August 14, 1985, he filed a motion for an attorney to represent him in the post-conviction proceedings.
On August 29, 1985, Judge Nolan dismissed defendant's post-conviction petition as frivolous pursuant to section 122-1 et seq. of the Code of Criminal Procedure of 1963 (the Code) (Ill. Rev. Stat. 1985, ch. 38, par. 122-1 et seq.), and refused to appoint an attorney to reformulate the petition. Defendant filed a timely notice of appeal on September 10, 1985. On October 24, 1985, the State Appellate Defender was appointed to represent him on appeal.
On appeal, defendant asserts (1) that the trial court erred in failing to assign the post-conviction proceeding to a Judge who did not participate in the proceedings which resulted in the defendant's guilty plea; (2) that the trial court erred in dismissing the defendant's pro se post-conviction petition without first conducting a hearing at which the defendant was present; (3) that because the trial court dismissed his petition beyond the 30-day time period specified in section 122 -- 2.1, this cause should be remanded; and (4) that section 122 -- 2.1 is an unconstitutional infringement on the doctrine of separation of powers and the due process clauses of the Federal and State constitutions.
The defendant initially argues that the order dismissing his post-conviction petition should be reversed because the trial Judge who dismissed the petition was the same Judge who accepted his guilty plea. He relies on section 122 -- 8 of the Code, which mandated that a post-conviction petition must be heard by a Judge who was not involved in the original proceeding. In light of the recent case of People v. Joseph (1986), 113 Ill. 2d 36, which declared section 122 -- 8 to be unconstitutional as violative of the constitutional provision requiring the separation of judicial and legislative powers, we reject defendant's first argument.
Next, relying on language in People v. Alexander (1985), 136 Ill. App. 3d 1047, defendant argues that this cause should be remanded because the trial court dismissed his post-conviction petition without first conducting a hearing at which he was either present personally or represented by counsel. We disagree.
In People v. Alexander, the court disapproved of a proceeding where the prosecutor was present and the defendant was not. (136 Ill. App. 3d 1047, 1052.) The court was more concerned about the active presence of the State at this preliminary stage of the proceedings than it was about the existence or nonexistence of a formal hearing. The court stated:
"t this preliminary stage of the proceedings, the trial Judge alone must consider the petition in view of the relevant court files. The State is to have no input with regard to the circuit court decision at this stage of the proceedings. . . . One-sided hearings, such as those held in the case at bar, may in some circumstances unduly prejudice the petitioner." 136 Ill. App. 3d 1047, 1052.
In the case at bar, the State did not participate in any ex parte hearing with the trial court. Indeed, such a hearing is not a prerequisite to a dismissal pursuant to section 122 -- 2.1. We do not agree that the dismissal of defendant's petition in the absence of any hearing was fundamentally unfair and requires remand. Not every petition which claims ineffective assistance of counsel or unfulfilled plea agreement alone warrants an evidentiary hearing. For a petitioner to be entitled to a post- conviction hearing, he must make a substantial showing of a violation of constitutional rights. (People v. Williams (1970), 47 Ill. 2d 1, 4.) We have carefully examined defendant's post-conviction petition, and we do not find that the sworn statements warrant the fair inference of a violation of constitutional rights which are not negated by the record. His claim that his guilty plea was induced by an unfulfilled plea agreement is negated by the record, while his charges of coercion ...