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07/28/89 the People of the State of v. Brad Lieberman

July 28, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, RESPONDENT-APPELLEE

v.

BRAD LIEBERMAN, PETITIONER-APPELLANT



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

542 N.E.2d 894, 186 Ill. App. 3d 277, 134 Ill. Dec. 548 1989.IL.1178

Appeal from the Circuit Court of Lake County; the Hon. Jack Hoogasian, Judge, presiding.

APPELLATE Judges:

JUSTICE McLAREN delivered the opinion of the court. NASH and REINHARD, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCLAREN

Defendant appeals from two orders of the circuit court of Lake County. On June 29, 1987, the court dismissed defendant's second petition for post-conviction relief. On July 1, 1987, the court found, upon remand of part of defendant's first petition for post-conviction relief, that the jury in defendant's trial was not tainted by prejudicial publicity. We affirm.

Defendant Brad Lieberman (Lieberman) was convicted of rape (Ill. Rev. Stat. 1979, ch. 38, par. 11-1(a)), robbery (Ill. Rev. Stat. 1979, ch. 38, par. 18-1), and intimidation (Ill. Rev. Stat. 1979, ch. 38, par. 12-6(a)(1)) in the circuit court of Lake County in 1980. The conviction and sentences were affirmed in a Rule 23 order issued on December 7, 1982.

On March 23, 1984, Lieberman filed a petition for post-conviction relief. The public defender was appointed to the case, and supplemental petitions were filed on Lieberman's behalf. The circuit court denied this petition on October 15, 1984. This court affirmed in part, and remanded for an evidentiary hearing on Lieberman's contention that the jury had been tainted by prejudicial publicity. The supreme court denied leave to appeal the portions affirmed.

Lieberman sought leave to file a second petition for post-conviction relief in these proceedings, alleging the ineffective assistance of his attorney at trial, the ineffective assistance of his attorney at the hearing for post-conviction relief, and the existence of a new scientific test to prove his innocence. The circuit court denied leave to do so, and Lieberman appealed. The appeal was dismissed when, upon the filing of the second petition, Lieberman withdrew his appeal.

Meanwhile, the State filed a motion to dismiss the second petition for post-conviction relief. The circuit court dismissed the petition following a hearing on June 29, 1987. The court then held the evidentiary hearing, required by the remand order, on the issue of jury exposure to prejudicial publicity. The court found adversely to Lieberman. It is from these rulings that Lieberman now appeals.

The first issue is whether the circuit court properly dismissed Lieberman's second petition for post-conviction relief. To begin with, Lieberman's contention that the trial court denied him the right to file his second petition is absurd. The record contains 48 pages of court proceedings devoted to the hearing on the second petition held on June 28, 1987. The final page contains an oral order by the trial Judge dismissing the petition. This is in addition to countless other motions and proceedings regarding the petition. Lieberman himself admitted at the hearing that his petition was filed. To argue now that he was denied right to file is ridiculous. The second petition was filed and was ruled on by the court.

Secondly, section 122-3 of the Post-Conviction Hearing Act provides that "[a]ny claim of substantial denial of constitutional rights not raised in the original or an amended petition is waived." (Ill. Rev. Stat. 1987, ch. 38, par. 122-3.) This makes clear that only one petition for post-conviction relief is contemplated by the Post-Conviction Hearing Act. (Ill. Rev. Stat. 1987, ch. 38, pars. 122-1 through 122-8.) A defendant is to get "one complete opportunity to show a substantial denial of his constitutional rights." (People v. Logan (1978), 72 Ill. 2d 358, 370.) However, when proceedings on a petition are deficient in some fundamental way, a court may allow the filing of successive post-conviction petitions. People v. Free (1988), 122 Ill. 2d 367, 376.

In order to determine whether or not the proceedings on the first petition were deficient, it is essential that the proceedings be finally resolved. This is only logical. It would be absurd to rule on the sufficiency or deficiency of a proceeding that is not yet complete. Our system of appellate review is based on this general principle, as only final orders are appealable. It should make no difference that, in this case, the court reviewing the proceedings is another trial court. Lieberman's contention in his second petition, of ineffective assistance of counsel at his first post-conviction hearing, is partially dependent upon the finding of a tainted jury at trial. In would make no sense to determine the issue of ineffective assistance of counsel first.

This principle also best serves the interests of judicial economy. If the proceedings on the first petition reveal constitutional error in the trial, the second petition becomes meaningless. Any proceedings on, or subsequent appeals from, the second petition would be a waste of the judicial system's time and resources. In this case, Lieberman attempted to file a second petition while he was appealing the results of his first petition hearing. When the trial court refused to allow the filing of the petition, Lieberman appealed the denial. Lieberman withdrew this appeal when he was allowed to file his second petition. The second petition was subsequently dismissed before the remand hearing on the first petition. This procedural morass was further confounded by the fact that four trial court Judges were involved at one time or another with these petitions. This confusion is unnecessary. By terminating ...


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