APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION
522 N.E.2d 1325, 168 Ill. App. 3d 925, 119 Ill. Dec. 466 1988.IL.511
Appeal from the Circuit Court of Cook County; the Hon. Gino L. Di Vito, Judge, presiding.
JUSTICE SCARIANO delivered the opinion of the court. STAMOS and BILANDIC, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SCARIANO
Following his conviction for murder, an appeal affirming that conviction, and an appeal reversing the dismissal of his post-conviction petition and remanding it for further proceedings, petitioner filed an amended post-conviction petition alleging ineffective assistance of trial counsel and prosecutorial misconduct at trial. When the petitioner came before the trial court in June 1985, the court did not appoint counsel to represent Jones but rather reviewed the petition to decide whether the appointment of counsel was necessary. The next day, the trial court dismissed Jones' petition, stating that it was insufficient to support any post-conviction relief. He appeals, raising the following issues: (1) whether section 122-2.1 of the Post-Conviction Hearing Act (Ill. Rev. Stat. 1985, ch. 38, par. 122-2.1(a)), which authorizes the dismissal of post-conviction petitions that are deemed frivolous or without merit without appointment of counsel, is violative of petitioner's right to due process and equal protection; (2) whether petitioner was denied his due process and equal protection rights by the trial court's refusal to provide him with a transcript of his trial; (3) whether section 122-2.1(a) of the Post-Conviction Hearing Act is invalid because section 122-8 of that act has been declared unconstitutional; (4) whether that portion of section 122-2.1 requiring the trial Judge to specify his reasons for dismissing a petition in a written order is directory or mandatory in nature; (5) whether that portion of section 122-2.1 requiring the trial Judge to pass upon the merits of a petition within 30 days is directory or mandatory in nature; (6) whether the trial court's dismissal of Jones' petition was improper because he was neither present nor represented at the hearing at which this ruling was made, but an assistant State's Attorney was present; (7) whether the trial court properly exercised its discretion in dismissing Jones' post-conviction petition as frivolous.
In August 1978 petitioner was convicted of the murders of Samuel and Campbell Thompson and sentenced to 100 to 300 years in the Illinois Department of Corrections. This conviction was upheld in People v. Jones (1980), 84 Ill. App. 3d 896, 406 N.E.2d 112.
In February 1982 Jones filed a post-conviction petition, which was dismissed by the trial court in August 1983. However, on appeal in November 1984 the dismissal of this petition was reversed and his case remanded for further proceedings because he had received ineffective assistance of counsel at the post-conviction proceeding. (People v. Jones (1984), 129 Ill. App. 3d 368, 472 N.E.2d 818.) (At the time of that appeal section 122-4 of the Post-Conviction Hearing Act (Ill. Rev. Stat. 1983, ch. 38, par. 122-4) provided for the appointment of counsel in a post-conviction proceeding if an indigent petitioner so requested.)
At his second post-conviction proceeding, Jones filed an amended petition alleging the following:
"(a) Petitioner was denied the effective assistance of appointed trial counsel due to inadequate defense investigation of and failure to have an independent ballistic test conducted regarding a .38 revolver alleged to have been the murder weapon and with the result that had this been done, the jury's verdicts [ sic ] would have been different;
(b) Petitioner was denied the effective assistance of appointed trial counsel due to inadequate defense investigation of and failure to subpoena a person or persons having exculpatory evidence, all to the undue prejudice of the Petitioner herein and with the result that had this been done, the jury's verdict would probably have been different;
(c) Petitioner was denied the effective assistance of appointed trial counsel due to his failure to permit Petitioner to testify in his own defense and with the result that had Petitioner been permitted to testify in his own defense, the jury's verdict would probably have been different;
(d) Petitioner was denied the effective assistance of appointed trial counsel due to his failure to compel the Prosecutor to fully respond to defense pre-trial discovery requests concerning police street files; and
(e) Petitioner was denied a fair trial due to prosecutorial misconduct consisting of suppression of defense-favorable evidence by the Prosecutor's deliberate and calculated failure to fully comply with Petitioner's pre-trial discovery requests which, if complied with by the Prosecutor, would have yielded defense-favorable evidence which would probably have changed the verdicts if brought to the attention of the jury."
In his amended petition, Jones also requested that counsel be appointed to represent him and he also requested a transcript of the trial proceedings. When the petition came before the trial court on June 13, 1985, the Judge did not appoint counsel to represent Jones but rather continued the matter to the next day, in order to review the petition before ruling on it. On the next day the trial court dismissed Jones' petition as frivolous and without merit, pursuant to section 122-2.1(a) (Ill. Rev. Stat. 1985, ch. 38, par. 122-2.1(a)). Although an assistant State's Attorney was present when the trial court ruled, petitioner was neither present nor represented. Jones appeals from the dismissal of his post-conviction petition.
Several substantial amendments to the Post-Conviction Hearing Act (the Act) were adopted by the Illinois legislature in 1983. Prior to those amendments, the following procedures were established for the filing and adjudication of a post-conviction petition. A proceeding was commenced by filing a post-conviction petition with the clerk of the court in which the conviction took place, whose responsibility it was to bring the petition "promptly to the attention of the court." (Ill. Rev. Stat. 1983, ch. 38, par. 122-1.) Any claim not raised in the original or in an amended petition was waived. (Ill. Rev. Stat. 1983, ch. 38, par. 122-3.) The court had authority to appoint counsel to represent the petitioner as well as to provide a transcript of the trial proceedings if an indigent petitioner so requested. (Ill. Rev. Stat. 1983, ch. 38, par. 122-4.) Once the petition was filed and docketed, the State had 30 days in which to answer the petition or move to dismiss it. (Ill. Rev. Stat. 1983, ch. 38, par. 122-5.) If the trial court denied the State's motion to dismiss, the State was then required to answer the petition within 30 days. (Ill. Rev. Stat. 1983, ch. 38, par. 122-5.) Thereafter the court could take the matter under advisement, based on the record before it, or hold an evidentiary hearing to resolve factual matters in dispute between the parties. Ill. Rev. Stat. 1983, ch. 38, par. 122-6.
The 1983 amendments changed this procedure in several ways, most significantly by the addition of section 122 -- 2.1, which established a new procedure whereby a court is obligated to make an initial determination of whether the petition is frivolous or patently without merit. That section provides as follows:
"(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 ...