APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION
523 N.E.2d 1258, 170 Ill. App. 3d 26, 120 Ill. Dec. 347 1988.IL.731
Appeal from the Circuit Court of Cook County; the Hon. Themis N. Karnezis, Judge, presiding.
JUSTICE FREEMAN delivered the opinion of the court. McNAMARA and RIZZI, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE FREEMAN
Defendant/petitioner, Noel Bonilla, was convicted on November 26, 1985, of armed violence and attempted murder. On December 18, 1985, the trial court sentenced defendant to six years' imprisonment for the offenses. Defendant did not file a direct appeal from the convictions. On July 7, 1986, defendant filed a pro se petition for post-conviction relief. On August 15, 1986, the trial court dismissed defendant's petition in a written order without a hearing.
Defendant filed an appeal and the State appellant defender was appointed as counsel. On appeal defendant contends that, as an indigent pro se defendant seeking post-conviction relief, he was entitled to the appointment of counsel prior to the trial court's consideration of whether his petition was frivolous or patently without merit. Defendant alleges, among other things, equal protection and due process violations. In addition, defendant asserts that since the trial court failed to enter its order of dismissal within the 30-day period provided for in the statute, the order of dismissal should be reversed and the cause should be remanded to the trial court for further consideration.
For the reasons stated below, we reverse and remand this matter to the trial court.
In its order of dismissal, the trial court reviewed the allegations of defendant's petition. The petition alleges that defendant was not proved guilty beyond a reasonable doubt; that the court erroneously limited cross-examination; and that the court erred in allowing the State to proceed on charges of armed violence and attempt. The court's order of dismissal concludes that the claims asserted in the petition could have been raised on direct appeal, that petitioner failed to allege a substantial denial of his constitutional rights, and that the allegations asserted relate to evidentiary matters.
In its brief, the State initially responds that defendant waived the issues raised in his petition for post-conviction relief since he failed to raise them on direct appeal. However, we find that in each of the cases relied on by the State to establish waiver, a direct appeal had been filed and considered by the court. (People v. Silagy (1987), 116 Ill. 2d 357, 370, 507 N.E.2d 830, cert. denied (1987), U.S. , 98 L. Ed. 2d 163, 108 S. Ct. 212, rehearing denied (1987), U.S. , 98 L. Ed. 2d 413, 108 S. Ct. 476; People v. Gaines (1984), 105 Ill. 2d 79, 87, 473 N.E.2d 868, cert. denied (1985), 471 U.S. 1131, 86 L. Ed. 2d 282, 105 S. Ct. 2666; People v. Ward (1971), 48 Ill. 2d 117, 121, 268 N.E.2d 692, cert. denied (1971), 404 U.S. 849, 30 L. Ed. 2d 87, 92 S. Ct. 155; People v. French (1970), 46 Ill. 2d 104, 107, 262 N.E.2d 901, cert. denied (1971), 400 U.S. 1024, 27 L. Ed. 2d 636, 91 S. Ct. 590.) The cited cases hold that where a full review of the issues raised was had on appeal, any claim which might have been raised on appeal, but was not, is considered waived. In the instant case, defendant did not file a direct appeal from his conviction. Therefore, the cases cited by the State to establish waiver are inapposite. We will consider each of defendant's arguments on appeal.
In his appeal defendant relies on the Illinois Post-Conviction Hearing Act (Ill. Rev. Stat. 1985, ch. 38, par. 122-1 et seq.). The pertinent sections of the statute provide:
"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 . . .." Ill. Rev. Stat. 1985, ch. 38, par. 122-2.1(a).
"If the petition is not dismissed pursuant to Section 122-2.1, and alleges that the petitioner is unable to pay the costs of the proceeding, the court may order that the petitioner be permitted to proceed as a poor person and order a transcript of the proceedings delivered to petitioner in accordance with Rule of the Supreme Court. If the petitioner is without counsel and alleges that he is without means to procure counsel, he shall state whether or not he wishes counsel to be appointed to represent him. If appointment of counsel is so requested, and the petition is not dismissed pursuant to Section 122-2.1, the court shall appoint counsel if satisfied that the petitioner has no means to procure counsel." Ill. Rev. Stat. 1985, ch. 38, par. 122-4.
Defendant initially asserts that section 122-2.1 of the Post-Conviction Hearing Act (Ill. Rev. Stat. 1985, ch. 38, par. 122-2.1) is an unconstitutional infringement on the rulemaking authority of the courts in that it conflicts with Supreme Court Rule 651(c) (107 Ill. 2d R. 651(c)) and violates the separation of powers doctrine. As indicated above, section 122-2.1 allows the trial court to dismiss a petition filed by an indigent, without appointing counsel, where the court finds the petition to be frivolous or patently without merit. Supreme Court Rule 651(c), on the other hand, provides ...