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12/04/89 the People of the State of v. Riccardo White

December 4, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

RICCARDO WHITE, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION

556 N.E.2d 535, 198 Ill. App. 3d 781, 144 Ill. Dec. 857 1989.IL.1865

Appeal from the Circuit Court of Cook County; the Hon. Earl E. Strayhorn, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE MANNING delivered the opinion of the court. BUCKLEY and O'CONNOR, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MANNING

The sole issue presented on appeal is whether the trial court's dismissal of the petitioner's pro se post-conviction petition was proper.

Petitioner, Riccardo White, together with Philip Shaw, was charged by information filed in the circuit court of Cook County, with the murder of Edward Lewis. In separate, simultaneous trials, Shaw was tried before a jury, and the petitioner was tried in a bench trial. Both men were found guilty as charged.

In a joint appeal, both men contended that they were denied a fair trial. (People v. Shaw (1981), 98 Ill. App. 3d 682, 424 N.E.2d 834.) The petitioner raised only two issues: (1) whether the trial court erred in conducting simultaneous trials; and (2) whether the trial court erred in finding him guilty on the theory of accountability. This court rejected petitioner's arguments and affirmed the convictions of both men. Thereafter, petitioner filed a petition for habeas corpus relief in the Federal district court, wherein he alleged ineffective assistance of trial counsel violated his constitutional rights. (United States ex rel. White v. DeRobertis (N.D. Ill. 1983), 566 F. Supp. 871.) The district court denied the writ of habeas corpus.

In 1986, petitioner filed a pro se petition for post-conviction relief and motion for appointment of counsel. In the petition, petitioner alleged that he had been illegally arrested in violation of his fourth amendment rights; and therefore, trial counsel's failure to challenge the legality of the arrest, when combined with other errors, amounted to ineffective assistance of counsel, a violation of his sixth amendment rights. The State moved to dismiss the petition for failure to state a claim, and further, that the issues raised by the petitioner were barred under the doctrines of res judicata, waiver and collateral estoppel.

During the hearing on the State's motion to dismiss, petitioner's appointed counsel certified to the court, pursuant to Supreme Court Rule 651(c) (107 Ill. 2d R. 651(c)), that he had consulted with the petitioner, had read the record and that there was nothing that he could add to the petition. The trial court granted the State's motion and dismissed the petition with prejudice, finding that the petition for post-conviction relief did not assert any constitutional issues. The petitioner now appeals that dismissal under the Post-Conviction Hearing Act (Ill. Rev. Stat. 1985, ch. 38, par. 122-1 et seq.). For the following reasons, we affirm the judgment of the circuit court.

On appeal, the petitioner asserts a twofold argument. First, he argues that the trial court erred in dismissing his pro se petition for post-conviction relief because he was illegally arrested, and thus, the identification testimony of several witnesses was improperly allowed, which he contends was a violation of his right to a fair trial guaranteed by the fourth amendment. Petitioner further argues that his sixth amendment right to effective assistance of counsel was denied where trial counsel suggested that he fabricate a story and prevented him the opportunity to testify. Second, petitioner maintains that the trial court erred in dismissing the petition because post-conviction counsel was ineffective for failure to amend the pro se petition or put it in proper legal form to adequately state these constitutional deprivations.

The State counters that the trial court properly dismissed the petition since the petitioner utterly failed to demonstrate the existence of any substantial violation of his constitutional rights; and even if his allegations on appeal were sufficient, they would be barred under the doctrines of res judicata, waiver and collateral estoppel. We agree.

It is well settled in Illinois that a proceeding under the Post-Conviction Hearing Act is not an appeal but a collateral attack on the judgment. (People v. James (1986), 111 Ill. 2d 283, 290-91, 489 N.E.2d 1350.) "The purpose of a post-conviction proceeding is to inquire into the constitutional phases of the original conviction which have not already been adjudicated." (People v. Williams (1970), 47 Ill. 2d 1, 3, 264 N.E.2d 697; see also People v. Gaines (1984), 105 Ill. 2d 79, 87, 473 N.E.2d 868.) The burden is upon the petitioner to demonstrate a substantial showing of a violation of a constitutional right. People v. Silagy (1987), 116 Ill. 2d 357, 365, 507 N.E.2d 830; People v. Griffin (1985), 109 Ill. 2d 293, 303, 487 N.E.2d 599.

Moreover, it is well established that a determination of the trial court in a post-conviction proceeding will not be set aside unless it is manifestly erroneous. (People v. Albanese (1988), 125 Ill. 2d 100, 109, 531 N.E.2d 17; Griffin, 109 Ill. 2d at 303.) Proceedings under the Post-Conviction Hearing Act are not meant to provide the petitioner an opportunity to relitigate his case. Hence, issues which were raised on direct appeal are generally res judicata as to all issues decided (People v. Kubat (1986), 114 Ill. 2d 424, 436, 501 N.E.2d 111; Gaines, 105 Ill. 2d at 87-88), and issues which could have been raised, but were not raised, are ...


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