APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION
515 N.E.2d 219, 161 Ill. App. 3d 573, 113 Ill. Dec. 410
Appeal from the Circuit Court of Cook County; the Hon. Gino L. DiVito, Judge, presiding. 1987.IL.1382
PRESIDING JUSTICE QUINLAN delivered the opinion of the court. CAMBPELL and MANNING, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE QUINLAN
The petitioner, Robert Jackson, filed a petition in the circuit court of Cook County under the Post-Conviction Hearing Act (Ill. Rev. Stat. 1985, ch. 38, par. 122-1 et seq.) and requested an evidentiary hearing on the following contentions: (1) the trial Judge improperly found that he had waived his right to a jury trial without first determining whether he understood that right or the consequences of his waiver; (2) he had been denied his right to the effective assistance of counsel on appeal; and (3) the State had failed to prove him guilty beyond a reasonable doubt. The State moved to dismiss the petition, and, after hearing arguments of counsel, the circuit court dismissed the petition without conducting an evidentiary hearing. The petitioner appealed.
The petition and supporting exhibits contained the following factual allegations. The petition set forth that Jackson was charged in the circuit court of Cook County with murder and armed violence for the death of Rudolph Ortiz. The petitioner's mother, Elizabeth Jackson, according to her affidavit which was attached to the petition, retained attorney Isaiah Gant to represent the petitioner. Following a bench trial, Jackson was found guilty of murder and was sentenced to serve 20 years in the Illinois Department of Corrections. Thereafter, Elizabeth Jackson again retained Gant to appeal the petitioner's conviction. Also attached to the petition was a copy of a certified check payable to Gant in the amount of $1,000, which was alleged to be partial payment of Gant's fee for the appeal. Gant filed a notice of appeal in the petitioner's case on January 18, 1982, he filed a docketing statement pursuant to Supreme Court Rule 606(g) (107 Ill. 2d R. 606(g)) on February 22, 1982, and he obtained an extension of time in which to file a brief on March 25, 1982. Elizabeth Jackson telephoned Gant several times during this period and each time, according to her affidavit, Gant had assured her that progress was being made in the petitioner's appeal. However, it appears that Gant took no further action with the petitioner's appeal after obtaining the extension on March 25. Following the failure to respond to this court's issuance of a rule to show cause why the petitioner's appeal should not be dismissed, the petitioner's appeal was dismissed for want of prosecution on July 9, 1982.
The petition alleged that he first learned that his appeal had been dismissed after his mother telephoned the appellate court clerk's office on July 11, 1984. Thereafter, Elizabeth Jackson retained another attorney, who filed a motion in this court to vacate its dismissal order of July 9 and, on October 9, 1984, this court denied the petitioner's motion. Petitioner's attorney then filed a motion in the supreme court for a supervisory order vacating the appellate court's dismissal order, and the supreme court denied that motion on December 18, 1984.
On April 12, 1985, Jackson filed the instant post-conviction petition in the circuit court. Initially, the petition was dismissed on June 13, 1985, but the dismissal order was vacated after the petitioner filed a motion for reconsideration, and a hearing was scheduled for September 16, 1985. On the day of the hearing, the State moved to dismiss the post-conviction petition, and, following arguments of counsel, the court granted the State's motion and again dismissed the petition. The petitioner now brings this appeal.
The initial issue presented by this appeal is whether the circuit court erred in dismissing Jackson's post-conviction petition alleging, inter alia, ineffective assistance of counsel without an evidentiary hearing on the factual allegations set forth in the petition and in his mother's affidavit, which was attached in support of the petition. For the reasons that follow we find that the circuit court properly dismissed the post-conviction petition without an evidentiary hearing.
An action brought under the Post-Conviction Hearing Act is not an appeal; rather, it is a collateral attack on a judgment of conviction. (People v. James (1986), 111 Ill. 2d 283, 489 N.E.2d 1350.) The purpose of such a proceeding is to resolve allegations that constitutional violations took place in the proceedings which resulted in the petitioner's conviction, when those allegations were not, or could not have been, adjudicated previously. (See People v. Silagy (1987), 116 Ill. 2d 357, 507 N.E.2d 830; People v. Harris (1980), 91 Ill. App. 3d 376, 414 N.E.2d 911; Ill. Rev. Stat. 1985, ch. 38, par. 122-1.) The petitioner in a post-conviction proceeding is not entitled to an evidentiary hearing as of right. (People v. Silagy (1987), 116 Ill. 2d 357, 507 N.E.2d 830; People v. James (1986), 111 Ill. 2d 283, 489 N.E.2d 1350.) Summary dismissal of a non-meritorious petition without an evidentiary hearing is permitted under the Post-Conviction Hearing Act. (People v. James (1986), 111 Ill. 2d 283, 489 N.E.2d 1350.) The denial of post-conviction relief based upon a claim of ineffective assistance of counsel will be upheld unless it is manifestly erroneous. People v. Rogers (1986), 147 Ill. App. 3d 1, 5, 497 N.E.2d 856, 858.
In order to survive a threshold determination of merit, a post-conviction petition must set forth facts that demonstrate a denial of constitutional rights. (People v. Garvin (1987), 152 Ill. App. 3d 438, 504 N.E.2d 948.) The petitioner's first claim here is that the trial court improperly determined that he waived his right to a jury trial without first determining whether he knowingly and intelligently waived that right. This claim centers on the following colloquy, which took place prior to the petitioner's trial:
"THE COURT: Let the record show we have Mr. Jackson before us now. Mr. Gant is here and the State's Attorney Mark Rakoczy is here.
As I understand, Mr. Gant you are ready for trial ...