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05/01/89 the People of the State of v. John Pecka

May 1, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

JOHN PECKA, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

538 N.E.2d 1189, 183 Ill. App. 3d 60, 131 Ill. Dec. 633 1989.IL.638

Appeal from the Circuit Court of Clay County; the Hon. E.C. Eberspacher, Judge, presiding.

APPELLATE Judges:

JUSTICE LEWIS delivered the opinion of the court. WELCH, P.J., and HARRISON, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LEWIS

The defendant, John Pecka, appeals from the trial court's denial of his amended petition for post-conviction relief in a judgment entered February 1, 1987. On July 19, 1982, defendant was sentenced to 30 years' imprisonment for murder. The conviction and sentence were affirmed on direct appeal. (People v. Pecka (1984), 125 Ill. App. 3d 570, 466 N.E.2d 404.) In the direct appeal four issues were presented for review: (1) whether defendant was denied a fair trial by the court's failure to provide the jury with the proper instruction concerning the affirmative defense of voluntary intoxication; (2) whether the evidence at trial was sufficient to prove defendant guilty beyond a reasonable doubt; (3) whether defendant was unfairly prejudiced by certain of the prosecutor's statements made during closing argument; and (4) whether the sentence imposed was excessive.

On August 17, 1983, the defendant filed pro se a petition for post-conviction relief, which he later withdrew voluntarily on the advice of appointed counsel because his direct appeal had not yet been heard. On July 13, 1984, the opinion in the direct appeal was filed in this court. On August 20, 1984, defendant filed pro se a petition for post-conviction relief, which was subsequently amended by appointed counsel and filed on May 13, 1985. In the amended petition defendant sought to have his murder conviction reversed and the cause remanded for a new trial principally on the basis of the denial of his constitutional rights of due process and the effective assistance of appellate counsel. The State moved to deny and to dismiss the amended petition. The trial court dismissed the amended petition but subsequently allowed the defendant's motion to reconsider the order of dismissal. Following a hearing on December 4, 1986, the trial court entered judgment on February 1, 1987, denying the amended petition. From that judgment this appeal has been taken.

In the amended petition the defendant alleged that the trial court had denied him his constitutional rights of due process and effective assistance of counsel "when it denied defense counsel the right to introduce into evidence the blood alcohol level of the deceased for the purpose of establishing the defense of accident," thereby precluding him from "arguing a reasonable theory of innocence." He alleged further in the amended petition that his constitutional rights had been violated by certain remarks of the trial court that "demeaned defense counsel in the jury's presence, and unnecessarily implied to the jury that defense counsel was both delaying the trial and imposing upon the Court and the jury." The defendant alleged as well that the trial court violated his constitutional rights by "[forcing] the jury to deliberate from 1:00 p.m. on June 16, 1982, until 2:50 a.m., June 17, 1982," thereby placing "an undue physical and emotional burden upon the jury and [denying] Petitioner his Fifth Amendment Right to due process of law and his Sixth Amendment Right to a fair and impartial jury." With regard to this contention the defendant stated further:

"The early hours of the morning presented an abnormal and unreasonable time and situation for persons unaccustomed to them to make a decision as important as a verdict in a murder trial. The pressure was abnormal and unreal and due only to the Court's private time constraint."

The defendant alleged "a conflict with the Mt. Vernon office of the State Appellate Defender's Office, or at least one which would lend the appearance of impropriety to his representation by that office so that the Sixth Amendment, fundamental fairness, and due process preclude this Court from considering issues raised in his appeal as being barred by the doctrines of res judicata or collateral estoppel." Several extensive exhibits were attached to the amended petition. The defendant made numerous other allegations pertaining to the denial of his constitutional rights that are not addressed in this appeal; hence, we need not discuss them.

At the hearing on the amended petition on December 4, 1986, the court heard argument, but no testimony was proferred. Counsel newly appointed for the defendant stressed at this hearing that, although the defendant had indicated to appellate counsel that he had wanted certain of these issues raised in the direct appeal, appellate counsel did not raise them.

In a nine-page judgment the trial court considered all the allegations of the amended petition. With regard to the defendant's contention that he was denied the right to present a full defense because the trial court had excluded evidence of the victim's alleged intoxicated condition, the court stated:

"Clearly, this issue could have been presented to the Appellate Court on defendant's direct appeal. It was not. Nor is the failure so to do a matter of fundamental fairness. The relevance of the victim's alleged intoxicated state to the issues at trial was, at very best, tangential. It was, therefore, not a violation of defendant's constitutional rights to refuse to allow it into evidence even assuming, ad [ sic ] arguendo, that it was error not to do so."

Concerning the defendant's allegations pertaining to improper remarks of the trial court and the inordinate length of the jury's ...


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