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02/18/87 the People of the State of v. Raymond Garvin

February 18, 1987

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

RAYMOND GARVIN, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION

504 N.E.2d 948, 152 Ill. App. 3d 438, 105 Ill. Dec. 663 1987.IL.175

Appeal from the Circuit Court of Cook County; the Hon. Francis J. Mahon, Judge, presiding.

APPELLATE Judges:

Justice Hartman delivered the opinion of the court. Scariano, P.J. and Stamos, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HARTMAN

Petitioner, Raymond Garvin, appeals the circuit court's dismissal of his post-conviction petition as meritless contending: (1) he was entitled to a hearing on his petition after the court failed to dismiss it within 30 days of filing and docketing; (2) Supreme Court Rule 651(c) (103 Ill. 2d R. 651(c)) requires appointment of counsel; (3) due process and equal protection of law require appointment of counsel to indigent post-conviction petitioners; (4) section 122-2.1 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1985, ch. 38, par. 122-2.1) (Code) is unconstitutional due to our supreme court's invalidation of section 122-8 from which section 122-2.1 is not severable; and (5) ineffective assistance of trial and appellate counsel was demonstrated.

Petitioner appealed his conviction on two counts of attempted murder and one count of aggravated battery and the sentences to concurrent terms of 10, 10, and 5 years, respectively. (People v. Garvin (1984), 122 Ill. App. 3d 1156.) His attorney, the public defender, filed an Anders brief (Anders v. California (1967), 386 U.S. 738, 744, 18 L. Ed. 2d 493, 498, 87 S. Ct. 1396, 1400) seeking leave to withdraw as counsel after finding no meritorious issues but requesting that the aggravated-battery conviction be vacated as cumulative. Garvin subsequently pro se filed a brief contending: he had not been proved guilty beyond a reasonable doubt; the circuit court erred in admitting prejudicial evidence corroborating the complaining witnesses' testimony; and the evidence failed to demonstrate substantial steps taken toward the attempted murder.

Garvin was convicted of attempting to kill his ex-wife and her brother outside of their apartment building. Garvin argued with his ex-wife at her apartment and threatened to shoot her five times if she came out of the building. He subsequently threatened to shoot her brother if he "played hero" in the matter. An argument then ensued between Garvin and his former brother-in-law, and the two proceeded outside where Garvin produced a pistol. As his brother-in-law was walking away, Garvin fired one shot which penetrated the brother-in-law's lower leg. Garvin's ex-wife then came outside with her mother and other members of the family to help the victim. Garvin fired five shots at her before driving away. Garvin testified that he had not meant anything by the threats and had fired the gun at the ground and in the air without aiming at or intending to hit anyone. On direct appeal from his convictions, it was noted that a person who fires a gun at or toward another with malice or total disregard for human life may be convicted of attempted murder. (See People v. Woods (1978), 62 Ill. App. 3d 381, 385, 378 N.E.2d 1271.) The requisite intent to take life may thereby be inferred from the character of the assault, the use of a deadly weapon, the issuance of threats, and other circumstances surrounding the occurrence. (People v. Anderson (1982), 108 Ill. App. 3d 563, 566, 439 N.E.2d 65, appeal denied (1983), 92 Ill. 2d 575; People v. Woods (1978), 62 Ill. App. 3d 381, 385, 378 N.E.2d 1271.) Garvin's convictions of attempted murder were affirmed; the aggravated-battery conviction was vacated.

On September 26, 1984, Garvin filed a pro se petition for post-conviction relief and appointment of counsel contending that he had been denied effective assistance of counsel at trial and on appeal because his trial counsel should have conducted a field investigation in order to discover whether there were bullet scars or fragments on the face of the apartment building adjacent to the scene of the shooting. Garvin reasoned that he had fired down at the ground and up in the air and not at his alleged victims. Therefore, no bullets would have hit the building behind his victims. Had his trial counsel established the absence of bullet scars on the building, he would have been found not guilty of attempting to kill his ex-wife. Garvin also contended that he was denied effective assistance of appellate counsel, who should have discovered the bullet scar issue, which would have demonstrated the ineffective assistance of trial counsel and would have supported his pro se argument that he had not been proved guilty of attempted murder beyond a reasonable doubt.

On March 15, 1985, the circuit court dismissed Garvin's petition. Garvin appeals. I

Garvin initially contends that the circuit court was statutorily obligated to consider his petition on the merits once it failed to dismiss the petition as frivolous or meritless within 30 days of filing and docketing. A circuit court's failure to dismiss a post-conviction petition as frivolous within 30 days of its filing and docketing does not constitute a preliminary finding of merit sub silentio. (People v. Lieberman (1986), 149 Ill. App. 3d 1052, 1054-55, 501 N.E.2d 797, 799-800; see also People v. Wilson (1986), 146 Ill. App. 3d 567, 577-78, 499 N.E.2d 972; People v. Churchill (1985), 136 Ill. App. 3d 123, 124-25, 482 N.E.2d 355, cert. denied (1986), 476 U.S. 1118, 90 L. Ed. 2d 661, 106 S. Ct. 1978; contra, People v. Brown (1986), 142 Ill. App. 3d 139, 143, 491 N.E.2d 486.) In the absence of resultant prejudice, a circuit court's delay in dismissing a post-conviction petition as meritless or frivolous does not warrant reversal. (People v. Lieberman (1986), 149 Ill. App. 3d 1052, 1054, 501 N.E.2d 797, 799.) Here, no prejudice is asserted or appears to have resulted from the delay and reversal of the dismissal is unwarranted. II

Section 122-2.1 of the Code (Ill. Rev. Stat. 1985, ch. 38, par. 122-2.1), which allows for dismissal of frivolous or patently meritless petitions before appointment of counsel, is claimed by Garvin to conflict with Supreme Court Rule 651(c) (103 Ill. 2d R. 651(c)) and to be invalid as violating separation of powers. He argues that Rule 651(c) impliedly grants to indigent post-conviction petitioners a right to counsel. Rule 651(c), however, specifically concerns appeals from post-conviction proceedings and provides, in part, that upon the timely filing of a post-conviction notice of appeal by a petitioner found by the court to be indigent, a transcript of the record of the post-conviction proceedings must be prepared and filed with the court to which the appeal is taken and counsel on appeal must be appointed, both without cost to the petitioner. The appellate record should show that appellate counsel has consulted with petitioner, examined the record of the proceedings at the trial, and made whatever amendments to the petitions filed pro se that are necessary for an adequate presentation of petitioner's contentions. Garvin relies upon first district, fourth division cases as support for his theory. People v. Wilson (1986), 146 Ill. App. 3d 567, 582, 499 N.E.2d 972; People v. Williams (1986), 146 Ill. App. 3d 139, 140, 496 N.E.2d 1031; People v. Mason (1986), 145 Ill. App. 3d 218, 221, 494 N.E.2d 1176, appeal allowed (1986), 112 Ill. 2d 587.

The cases relied on by Garvin specifically rejected this court's opinion in People v. Porter (1986), 141 Ill. App. 3d 208, 213-14, 490 N.E.2d 47, appeal allowed (1986), 112 Ill. 2d 589, and those of other districts and of other divisions of this district (People v. Price (1986), 144 Ill. App. 3d 949, 952, 495 N.E.2d 517 (1st Dist., 3rd Div.); People v. Brown (1986), 142 Ill. App. 3d 139, 141-42, 491 N.E.2d 486 (5th Dist.); People v. Ross (1985), 139 Ill. App. 3d 674, 676-79, 487 N.E.2d 1137, appeal denied (1986), 111 Ill. 2d 593 (1st Dist., 1st Div.); People v. Baugh (1985), 132 Ill. App. 3d 713, 715-16, 477 N.E.2d 724, appeal denied (1985), 108 Ill. 2d 574). We find no basis for Garvin's reliance. He presents no new arguments. He cites the Pennsylvania post-conviction hearing statute for analogy, which was specifically considered, distinguished, and rejected in People v. Porter (1986), 141 Ill. App. 3d 208, 214, 490 N.E.2d 47.

Additionally, it should be noted that Garvin's perceived grant of a right to counsel by implication in Rule 651(c) is drawn from a strained reading of that rule, which specifically and explicitly concerns appointment of counsel on appeal from post-conviction hearings and specifically contemplates pro se post-conviction petitions in the trial court. The rule explicitly conditions its applicability "[u]pon the timely filing of a notice of appeal in a post-conviction proceeding." (103 Ill. 2d R. 651(c).) The reasonable reading of the rule allows section 122-2.1 to exist with the rule without conflict. The rule directs the circuit court to appoint counsel on appeal ; it does not direct appointment of counsel for post-conviction petitions prior to the appellate stage; that is done by section 122-4 of the Code if the petition has not been found patently without merit or frivolous. (Ill. Rev. Stat. 1985, ch. 38, par. 122-4.) There is, therefore, no conflict between the Code and Rule 651(c). This complementary interpretation of the rule and the Code is favored in statutory construction when, as here, the ...


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