Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

12/30/88 the People of the State of v. Sam Kimbrough

December 30, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, RESPONDENT-APPELLEE

v.

SAM KIMBROUGH, PETITIONER-APPELLANT

PETITIONER, SAM KIMBROUGH, APPEALS THE DENIAL OF HIS PETITION FOR POST-CONVICTION RELIEF PURSUANT TO THE POST-CONVICTION HEARING ACT (ACT) AS UNMERITORIOUS. ILL. RE

v.

STAT. 1985, CH. 38, PAR. 122-2.1.



We agree with that reading of Joseph and conclude that the supreme court there neither found nor created a right for petitioners to have their petitions heard by their original trial Judges.

APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION

533 N.E.2d 439, 178 Ill. App. 3d 445, 127 Ill. Dec. 567

Appeal from the Circuit Court of Cook County; the Hon. Philip Carey, Judge, presiding. 1988.IL.1939

APPELLATE Judges:

PRESIDING JUSTICE LORENZ delivered the opinion of the court. PINCHAM and MURRAY, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LORENZ

We reverse and remand.

Following a jury trial, petitioner was convicted of rape, aggravated kidnapping, and unlawful restraint. (Ill. Rev. Stat. 1981, ch. 38, pars. 11-1, 10-2(a)(3), 10-3.) A sentencing hearing was held on January 14, 1982, at which time petitioner's unlawful restraint conviction was merged into the conviction for aggravated kidnapping. Petitioner was then sentenced to two concurrent terms of 20 years' imprisonment. On March 11, 1983, petitioner's convictions were affirmed in an order entered pursuant to Supreme Court Rule 23 (107 Ill. 2d R. 23). 112 Ill. App. 3d 1161 (unpublished Rule 23 order).

On March 22, 1986, petitioner filed his petition for post-conviction relief. The petition contained the following bases for relief: that introduction of a police officer's testimony that, after being admonished of his right to remain silent, petitioner refused to speak with interrogating officers, was improper; that petitioner's due process rights were violated by a courtroom identification which was based on a suggestive show up; and that petitioner received ineffective assistance of counsel for counsel's failure to raise that issue, as well as an issue related to the denial of counsel at a lineup.

On August 11, 1986, after hearing had before Judge Phillip Carey, the petition was dismissed.

This appeal followed.

Opinion

Petitioner raises four issues on appeal: (1) the circuit court erred in dismissing the petition without appointing counsel for petitioner as the petition, on its face, presented meritorious issues; (2) section 122 -- 2.1 of the Post-Conviction Hearing Act is invalid because: (a) it infringes on the rulemaking authority of courts; (b) it denies indigent petitioners court access in violation of due process rights; (c) it violates petitioner's equal protection rights by denying appointment of counsel; and (d) it is inseverable from section 122 -- 8 of the Act, which has been held unconstitutional by the Illinois Supreme Court; (3) because the circuit court failed to enter the order of dismissal within 30 days of the petition's filing and docketing, the court could no longer dismiss the petition as frivolous under section 122 -- 2.1; and (4) petitioner is entitled to have the original trial Judge review the petition.

Consideration of petitioner's challenges to the validity of section 122 -- 2.1 has been obviated by the recent decision of People v. Porter (1988), 122 Ill. 2d 64, 521 N.E.2d 1158, in which our supreme court, in considering identical challenges to those raised here, upheld section 122 -- 2.1 as constitutionally valid and severable from section 122 -- 8. (Porter, 122 Ill. 2d at 70-86, 521 N.E.2d at 1159-67.) The court also noted that because all post-conviction petitions are subject to dismissal regardless of whether petitioners are represented by counsel if the petitions are found to be unmeritorious (Porter, 122 Ill. 2d at 78, 521 N.E.2d at 1163), petitioner's contention that it was error to dismiss the petition without appointing counsel similarly cannot form a basis for reversal. Further, we need not consider the merits of whether this cause should be remanded for the circuit court's failure to enter its order of dismissal within 30 days ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.