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03/30/89 the People of the State of v. Derrick Heard

March 30, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, RESPONDENT-APPELLEE

v.

DERRICK HEARD, PETITIONER-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FOURTH DIVISION

537 N.E.2d 883, 181 Ill. App. 3d 943, 130 Ill. Dec. 554 1989.IL.442

Appeal from the Circuit Court of Cook County; the Hon. Arthur J. Cieslik, Judge, presiding.

APPELLATE Judges:

JUSTICE LINN delivered the opinion of the court. JIGANTI, P.J., and JOHNSON, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LINN

Petitioner, Derrick Heard, was convicted of murder and sentenced to 68 years in prison. The appellate court affirmed his conviction and sentence in April 1984. He then filed a pro se petition for post-conviction relief, alleging that he was denied effective assistance of counsel because his trial attorney failed to file a motion to quash arrest and suppress statements and that his appellate attorney failed to raise any meaningful issues on appeal. The court denied the post-conviction petition. Heard retained a private attorney, who filed a motion for reconsideration of the dismissal of his pro se petition. Because no trial Judge had actually reviewed the motion for reconsideration, the appellate court remanded the cause back to the circuit court with the direction that it consider defendant's amended post-conviction petition. Another Judge reviewed the amended petition and dismissed it on October 2, 1986.

Heard appeals from this dismissal. He argues that the trial court erred in deciding the petition without appointing an attorney for Heard, particularly since the petition was based on sixth amendment issues concerning the effective assistance of counsel at the trial and appellate levels. He further argues that indigent pro se defendants seeking post-conviction relief are entitled to appointment of counsel before the court decides the petition; the cause should be remanded because the court failed to enter its order within 30 days of the filing of the petition, as required by statute; and that the cause should be remanded because the trial court failed to comply with the requirement that summary dismissal of post-conviction petitions must be by written order specifying findings of fact and Conclusions of law.

We affirm.

Background

Following Heard's conviction of murder and 68-year-sentence, an assistant public defender was assigned to represent him on appeal. According to Heard, the only issue that the attorney raised was the trial court's failure to impose a sentence in "a thoughtful manner." The appellate court affirmed Heard's conviction and sentence on April 13, 1984.

On April 11, 1984, Heard filed a pro se petition for post-conviction relief, alleging ineffective assistance of both trial and appellate counsel. Judge R. Eugene Pincham summarily dismissed this petition on May 1, 1984, without providing written findings of fact and Conclusions of law.

The clerk's office did not notify Heard of the Disposition of his petition until July 2, 1984. Before receiving this notice, Heard had retained a private attorney to represent him during the post-conviction proceedings. This attorney filed a motion for reconsideration of the dismissal of the pro se petition, which was denied.

On January 16, 1986, the appellate court found that the appeal should be dismissed and the matter remanded because no circuit court Judge had reviewed the motion to reconsider on its merits.

On April 10, 1986, the case was assigned to Judge Arthur J. Cieslik. On May 1, 1986, Heard asked that a bar association attorney be appointed to represent him. The Judge apparently believed at first that the case was on remand for reconsideration of Heard's sentence and granted the motion allowing Heard to be represented by counsel. However, the court subsequently realized that the case had been remanded for reconsideration of the post-conviction petition. Accordingly, after continuing the cause until he could fully review the relevant papers, the trial Judge on ...


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