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02/11/88 the People of the State of v. Aaron Porter

February 11, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE

v.

AARON PORTER, APPELLANT. -- THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,

v.

NATHANIEL SINGLETON, APPELLANT. -- THE PEOPLE OF THE STATE OF ILLINOIS, APPELLANT, V. MARVA MASON, A/K/A LINDA WELLS, APPELLEE



SUPREME COURT OF ILLINOIS

521 N.E.2d 1158, 122 Ill. 2d 64, 118 Ill. Dec. 465 1988.IL.175

No. 63274. -- Appeal from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook County, the Hon. William Cousins, Jr., Judge, presiding. No. 63384. -- Appeal from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook County, the Hon. Arthur J. Cieslik, Judge, presiding. No. 63716. -- Appeal from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook County, the Hon. Arthur J. Cieslik, Judge, presiding.

Modified on Denial of Rehearing April 5, 1988.

APPELLATE Judges:

JUSTICE RYAN delivered the opinion of the court. JUSTICE SIMON, Dissenting.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE RYAN

Defendants, Marva Mason, a/k/a Linda Wells, Aaron Porter, and Nathaniel Singleton, filed separate post-conviction petitions and motions for appointment of counsel to represent them on their petitions in the separate cases in the circuit court of Cook County. All three petitions were dismissed as "patently without merit" pursuant to section 122-2.1 of the Post-Conviction Hearing Act (Ill. Rev. Stat. 1985, ch. 38, par. 122-2.1) without appointment of counsel. In cause No. 63716 (Mason), the appellate court, first district, fourth division, held that section 122-2.1 is unconstitutional because: (1) section 122-2.1 conflicts with Supreme Court Rule 651(c) (107 Ill. 2d R. 651(c)), which requires the appointment of counsel at the appellate level, and (2) section 122-2.1 violates due process because it denies indigent petitioners meaningful access to the courts. (145 Ill. App. 3d 218.) In cause No. 63274 (Porter) and No. 63884 (Singleton), the second and fifth divisions, respectively, of the appellate court, first district, affirmed the trial court's dismissals and rejected the argument that section 122-2.1 is unconstitutional. 141 Ill. App. 3d 208; 143 Ill. App. 3d 1159 (Order under Supreme Court Rule 23).

Defendants Porter and Singleton filed petitions for leave to appeal in No. 63274 and No. 63884, which were granted. The State filed a petition for leave to appeal under Rule 317 (107 Ill. 2d R. 317) in People v. Mason, No. 63716, which was also granted, and these cases were consolidated in this court.

These cases present the following questions for review: (1) whether section 122 -- 2.1 of the Post-Conviction Hearing Act is constitutional, (2) whether section 122 -- 8 of the Post-Conviction Hearing Act, which has been held unconstitutional by this court, is severable from section 122 -- 2.1, and (3) whether the trial court complied with certain provisions of section 122 -- 2.1. I

The defendants contend that section 122 -- 2.1 is unconstitutional because it permits dismissal of post-conviction petitions which are deemed to be frivolous prior to the appointment of counsel. Section 122 -- 2.1 provides:

"(a) Within 30 days after the filing and docketing of each petition, the court shall examine such petition and enter an order thereon pursuant to this Section. If the court determines the petition is frivolous or is patently without merit, it shall dismiss the petition in a written order, specifying the findings of fact and Conclusions of law it made in reaching its decision. Such order of dismissal is a final judgment and shall be served upon the petitioner by certified mail within 10 days of its entry." (Ill. Rev. Stat. 1985, ch. 38, par. 122-2.1(a).)

If the petition is not dismissed pursuant to section 122-2.1, the indigent defendant is entitled to appointment of counsel. See Ill. Rev. Stat. 1985, ch. 38, par. 122-4.

In support of their assertion that section 122 -- 2.1 is unconstitutional, defendants claim that: (1) section 122 -- 2.1 conflicts with Supreme Court Rule 651(c) (107 Ill. 2d R. 651(c)), and therefore violates the doctrine of separation of powers, (2) denying counsel to indigent post-conviction petitioners violates the due process clauses of the Federal and State Constitutions, and (3) section 122 -- 2.1 violates the doctrine of equal protection because counsel is provided as a matter of right for indigents who take direct appeals from convictions whereas post-conviction petitioners must first establish that their petition is not "frivolous" before counsel is appointed. For the reasons set forth below, we find defendants' constitutional challenge to section 122 -- 2.1 to be without merit.

Defendants contend that section 122 -- 2.1 is unconstitutional because it conflicts with Supreme Court Rule 651(c) and therefore violates the doctrine of separation of powers. Rule 651(c) is entitled "Appeals in Post-Conviction Proceedings" and provides:

"Record for Indigents; Appointment of Counsel. Upon the timely filing of a notice of appeal in a post-conviction proceeding, if the trial court determines that the petitioner is indigent, it shall order that a transcript of the record of the post-conviction proceedings, including a transcript of the evidence, if any, be prepared and filed with the clerk of the court to which the appeal is taken and shall appoint counsel on appeal, both without cost to the petitioner. The record filed in that court shall contain a showing, which may be made by the certificate of petitioner's attorney, that the attorney has consulted with petitioner either by mail or in person to ascertain his contentions of deprivation of constitutional rights, has examined the record of the proceedings at the trial, and has made any amendments to the petitions filed pro se that are necessary for an adequate presentation of petitioner's contentions." (Emphasis added.) (107 Ill. 2d R. 651(c).)

Defendants assert that where the trial court dismisses an indigent petitioner's pro se petition without the appointment of counsel, the record on appeal fails to comply with Rule 651(c). Specifically, the defendants claim that section 122 -- 2.1 conflicts with Rule 651(c) because Rule 651(c) requires that the record in the appellate court show that appointed counsel at the trial level in a post-conviction proceeding has: (1) consulted with petitioner to ascertain his contention of deprivations of constitutional rights, (2) examined the record of the proceedings at the trial, and (3) has made any necessary amendments to the pro se petition for an adequate presentation of the petitioner's contention.

The Dissent erroneously states that Rule 651(c) allows an amendment of the post-conviction petition in the appellate court. There is nothing in Rule 651(c) that authorizes an amendment to the post-conviction petition in the appellate court or any other proceedings in the appellate court, to which the Dissent alludes. Rule 651(c) specifically governs appeals from post-conviction proceedings. The rule explicitly conditions its applicability "[u]pon the timely filing of a notice of appeal in a post-conviction proceeding." (107 Ill. 2d R. 651(c).) Thus the putative conflict between section 122 -- 2.1 and Rule 651(c) does not exist, because these provisions provide for appointment of counsel at different stages of the post-conviction process. Section 122 -- 2.1 concerns an indigent post-conviction petitioner's rights at the trial level and Rule 651(c) governs at the appellate level. E.g., People v. Price (1986), 144 Ill. App. 3d 949, 952; People v. Brown (1986), 142 Ill. App. 3d 139, 141-42; People v. Baugh (1985), 132 Ill. App. 3d 713, 715-16.

Additionally, it should be noted that section 122 -- 2.1 does not contravene the separation of powers doctrine because, as our appellate court has held, the appointment of counsel at the hearing stage of the post-conviction proceeding must be considered to be a legislative matter. (See People v. Ward (1984), 124 Ill. App. 3d 974, 978.) The legislature, in enacting section 122 -- 2.1, did not violate the exclusive power of this court to make rules regarding appeals because section 122 -- 2.1 deals with post-conviction procedure at the trial level and Rule 651(c) governs appellate procedure. Moreover, in People v. Ward (1984), 124 Ill. App. 3d 974, 978, the court noted that "the right to counsel at post-conviction proceedings is a matter of legislative grace and favor which may be altered by the legislature at will." The legislature has the power to create laws which govern judicial practice, so long as they do not unduly infringe upon the inherent powers of the judiciary. (People v. Cox (1980), 82 Ill. 2d 268, 274.) We find no merit in defendants' argument that section 122 -- 2.1 violates the separation of powers doctrine because no conflict exists between the Act and the rule, and the right to counsel at post-conviction proceedings, absent constitutional deprivations, is a matter of legislative grace. The provisions of Rule 651(c), which requires that the record on appeal disclose that counsel in the trial court took certain steps to assure an adequate presentation of defendant's claims, do not mandate that counsel be appointed in all post-conviction hearing proceedings. These requirements attach only after the trial court determines that counsel should be appointed.

We next consider defendants' due process challenge to section 122 -- 2.1. Defendants assert that section 122 -- 2.1 denies indigent petitioners a reasonably adequate opportunity to present their constitutional claims because pro se petitioners may not be capable of preparing a petition to survive this initial screening process. We do not agree.

Procedural due process contemplates indigents having a meaningful opportunity to be heard. (People v. Taylor (1979), 76 Ill. 2d 289.) "To determine what specific procedural safeguards fundamental fairness requires in the context of a particular proceeding, one must understand the nature of the proceeding." (76 Ill. 2d at 302.) Under section 122 -- 2.1 and section 122 -- 4 of the Act, an indigent petitioner is entitled to the appointment of counsel when the trial court determines that the claims are not frivolous and patently without merit.

Under the Post-Conviction Hearing Act, the petitioner must set forth the specific manner in which his rights were violated. (Ill. Rev. Stat. 1983, ch. 38, par. 122-2.1.) The petitioner does not have to construct legal arguments or cite to legal authority. Once the petitioner sets out allegations demonstrating a meritorious constitutional claim, he is entitled to have counsel represent him on the petition. "While it is obvious that counsel should be better able to more artfully draft a petition than an indigent petitioner unschooled in legal drafting, it is certainly not clear that an indigent petitioner could not present the gist of his claim so that the trial court could make an initial determination as to whether . . . the claim is frivolous." People v. Baugh (1985), 132 Ill. App. 3d 713, 717.

Additionally, the defendants contend that the appointment of counsel at the trial level is necessary for meaningful appellate review. To support this assertion, defendants claim that under most circumstances, the appellate court is presented with a poorly drafted petition and a blanket dismissal order, and appellate counsel cannot supplement the pro se petition with possibly meritorious claims.

The United States Supreme Court, however, has declared that fundamental fairness does not require that counsel be appointed for post-conviction petitioners. (Rodriquez v. United States (1969), 395 U.S. 327, 23 L. Ed. 2d 340, 89 S. Ct. 1715; Johnson v. Avery (1969), 393 U.S. 483, 21 L. Ed. 2d 718, 89 S. Ct. 747.) In Rodriquez the Court approved the Federal habeas corpus statute, which also requires an indigent petitioner to prepare his initial pleading without benefit of counsel. Moreover, in Johnson v. Avery the Court noted that in Federal courts "it is the practice to appoint counsel in post-conviction proceedings only after a petition for post-conviction relief passes initial judicial evaluation and the court has determined that issues are presented calling for an evidentiary hearing." Johnson v. Avery (1969), 393 U.S. 483, 487, 21 L. Ed. 2d 718, 722, 89 S. Ct. 747, 750.

The defendants assert that there are critical distinctions between section 122 -- 2.1 of the Illinois act and the Federal habeas corpus act, such that due process requires the appointment of counsel under section 122 -- 2.1. Specifically, the defendants argue that the Federal habeas corpus act provides for the filing of subsequent or successive applications for habeas corpus relief, whereas successive petitions are barred under the Illinois act. Additionally, the defendants note that under the Federal system, a district court may summarily dismiss a petition only after an examination of the petition, court files, and underlying record, while an Illinois circuit court may dismiss the case after only examining the petition itself. The Supreme Court's holding in Johnson v. Avery was not based on any peculiar provisions of the Federal habeas corpus act. The holding relates to both State and Federal proceedings. The Court stated: "It has not been held that ...


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