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06/23/89 the People of the State of v. Gary L. Vunetich

June 23, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

GARY L. VUNETICH, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

541 N.E.2d 741, 185 Ill. App. 3d 415, 133 Ill. Dec. 530 1989.IL.983

Appeal from the Circuit Court of St. Clair County; the Hon. William B. Starnes, Judge, presiding.

APPELLATE Judges:

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

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HARRISON

Defendant, Gary L. Vunetich, appeals from an order of the circuit court of St. Clair County which dismissed his post-conviction petition without an evidentiary hearing.

Defendant entered a plea of guilty to burglary in the circuit court of St. Clair County on January 17, 1977, and was sentenced to a three- to nine-year term of imprisonment. On January 8, 1987, defendant filed a pro se pleading alleging, inter alia, that he had been denied his right to counsel before and during his guilty plea. Thereafter, on January 26, 1987, the court appointed counsel to represent the defendant on his post-conviction petition. Defendant's counsel filed an amended post-conviction petition wherein defendant made the following allegations: (1) that his trial counsel had failed to interview certain listed and identified alibi witnesses; (2) that his trial counsel failed to investigate his case; (3) that his trial counsel assured him that he would be sentenced to a 25-year term of imprisonment if he were sentenced after a trial; and (4) that he told his trial counsel to file a motion to withdraw his plea and, if necessary, take an appeal, and that his counsel failed to do so. The defendant's mother subsequently filed an affidavit in conjunction with defendant's amended post-conviction petition.

A hearing was held on the State's motion to dismiss the post-conviction petition, and the court found that the transcript of the January 17, 1977, guilty plea did not support defendant's post-conviction claims. The court thereafter entered an order which stated that "the transcript of defendant's plea and sentence, is devoid of any evidence that would support defendant's allegations . . . [and] defendant has waived any right to an evidentiary hearing by failing to file his petition within the statutory time limit of 10 years from date of conviction."

On appeal, defendant contends (1) that the trial court's finding that his post-conviction petition was not filed within the 10-year limitation period was erroneous and (2) that his post-conviction petition raised genuine issues of fact, thereby precluding the trial court from dismissing the petition without an evidentiary hearing.

With respect to the defendant's first contention, the State admits in its brief that defendant "is correct in believing that he filed his petition in a timely manner in regard to the ten-year statute of limitations." The State, however, contends that the defendant lacks standing to file the petition.

The Post-Conviction Hearing Act states in pertinent part:

"Any person imprisoned in the penitentiary who asserts that in the proceedings which resulted in his conviction there was a substantial denial of his rights under the Constitution of the United States or of the State of Illinois or both may institute a proceeding under this Article." (Ill. Rev. Stat. 1987, ch. 38, par. 122-1.)

The State contends that the Post-Conviction Hearing Act (Ill. Rev. Stat. 1987, ch. 38, par. 122-1 et seq.) only permits review of convictions to those who are imprisoned or still on parole for the offense which they seek to overturn. The State claims that the defendant is not in prison or on parole for the 1977 Illinois conviction and therefore cannot use the post-conviction remedy.

The defendant in this case filed neither a motion to withdraw his guilty plea, nor a direct appeal. At the time the defendant filed his post-conviction petition he had completed his prison sentence on the challenged conviction. However, this Illinois conviction was used to enhance a subsequent Kentucky sentence years later. The State argues that although the defendant filed his petition within 10 years of his ...


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