APPELLATE COURT OF ILLINOIS, THIRD DISTRICT
513 N.E.2d 603, 160 Ill. App. 3d 366, 112 Ill. Dec. 189 1987.IL.1342
Appeal from the Circuit Court of Will County; the Hon. Herman S. Haase, Judge, presiding.
PRESIDING JUSTICE BARRY delivered the opinion of the court. WOMBACHER and HEIPLE, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BARRY
This is an appeal from the trial court's dismissal of the petitioner's petition for post-conviction relief.
A jury convicted the petitioner, Charles R. Robinson, of armed robbery. (Ill. Rev. Stat. 1981, ch. 38, par. 18-2(a).) Prior to sentencing, the petitioner filed a pro se motion to have his court-appointed attorney replaced. The petitioner was dissatisfied with his attorney's handling of the petitioner's mistaken identification defense. In particular, the petitioner believed his attorney should have offered into evidence a photograph of the petitioner taken two days prior to the crime. The attorney had offered only a photograph taken of the petitioner two days after the crime.
Following a hearing on the matter, the court denied the petitioner's motion. The petitioner thereafter filed two similar motions, both of which were denied.
On the petitioner's direct appeal of his conviction, he argued only that the trial court had erred in refusing to rule on the merits of his motion in limine concerning the admissibility of testimony about his refusal to take part in a lineup. We affirmed the trial court. People v. Robinson (1983), 112 Ill. App. 3d 1170 (unpublished Rule 23 order).
The petitioner then filed a pro se petition for post-conviction relief, arguing that he had received ineffective assistance of counsel at trial and on appeal. The trial court appointed counsel to represent the petitioner. The court-appointed counsel later filed a motion to withdraw, stating that he had found no constitutional issues suitable for post-conviction relief. Following a hearing on counsel's petition, the trial court allowed the motion.
The State then filed a motion to dismiss the petitioner's post-conviction petition. In response, the petitioner filed a pro se answer explaining in more detail his ineffective assistance allegations, which were similar to those he had presented in his original motion prior to sentencing. The petitioner also asked for a new court-appointed attorney. Following a hearing on the State's motion, the trial court found that there were no issues rising to a constitutional level and therefore dismissed the petitioner's petition for post-conviction relief. The petitioner appeals the trial court's decision.
On appeal, the petitioner first argues that the trial court erred in dismissing his petition without an evidentiary hearing on his allegations of ineffective assistance of counsel at trial and on appeal.
Dismissal of a post-conviction petition is a matter within the trial court's discretion; the petitioner is not entitled to an evidentiary hearing as a matter of right. (People v. Hanrahan (1985), 132 Ill. App. 3d 640, 478 N.E.2d 31.) Only when the petitioner makes a substantial showing of a constitutional violation is an evidentiary hearing necessary. (People v. Powell (1970), 46 Ill. 2d 416, 263 N.E.2d 33.) Conclusory allegations are not sufficient. People v. Howard (1981), 94 Ill. App. 3d 797, 419 N.E.2d 702.
In the instant case, we find no error in the trial court's dismissal of the petitioner's petition. Having reviewed the record, we find that the petitioner's allegation regarding the trial court's refusal to rule on the motion in limine is barred by the doctrine of res judicata, and that his allegations concerning ineffective assistance of counsel are not supported by a clear and substantial showing. The trial court therefore correctly determined that the petitioner had not ...