APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION
549 N.E.2d 742, 192 Ill. App. 3d 943, 140 Ill. Dec. 91 1989.IL.2029
Appeal from the Circuit Court of Cook County; the Hon. Romie J. Palmer, Judge, presiding.
PRESIDING JUSTICE FREEMAN delivered the opinion of the court. RIZZI and CERDA, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE FREEMAN
Petitioner, Michael Pittman, appeals from the dismissal of his petition for post-conviction relief. The petition, which was dismissed without an evidentiary hearing, was based on the allegation of ineffective assistance of counsel at trial. On appeal, petitioner contends that dismissal was improper because conflicting affidavits presented a factual dispute which could only be resolved by an evidentiary hearing. We affirm.
Following a bench trial in the circuit court of Cook County, petitioner was convicted of robbery and was sentenced to a term of three to nine years' imprisonment in the Illinois Department of Corrections. Petitioner appealed his conviction, whereupon this court affirmed. (People v. Pittman (1978), 62 Ill. App. 3d 295, 379 N.E.2d 112.) Subsequently, petitioner filed a petition under the Post-Conviction Hearing Act (Ill. Rev. Stat. 1985, ch. 38, par. 122-1 et seq.) at which time counsel was appointed on his behalf.
In his petition, petitioner alleged that his constitutional rights had been violated due to ineffective assistance of counsel at trial. Specifically, petitioner claimed that at trial he was identified as the perpetrator in a robbery which occurred on August 29, 1976. According to him, on the date of the robbery, he was incarcerated in the Illinois Department of Corrections, Youth Division, and therefore, he could not have been the perpetrator. Petitioner informed his privately retained attorney of this fact. However, defense counsel neither conducted an investigation, nor did he raise it as an alibi defense at trial. Petitioner maintains that defense counsel's conduct prejudiced his case and that, but for this prejudicial conduct, he would not have been convicted.
The petition, though accompanied by petitioner's affidavit attesting its truth, was unsupported by any other affidavits. The State filed a motion to dismiss the petition. Petitioner's trial attorney, who had also represented him on appeal, filed an affidavit in which he stated that he had not known of defendant's alibi defense until the filing of the post-conviction petition, and had he known, he would have conducted an investigation. A certificate of compliance with Supreme Court Rule 651(c) (107 Ill. 2d R. 651(c)) appears in the record. An assistant public defender filed an affidavit of a court reporter which stated that he was unable to locate the stenographic notes for two of the four dates of defendant's robbery trial. Additionally, an affidavit was filed on behalf of the clerk of the circuit court which stated that only a portion of the appellate court record could be located.
On June 24, 1987, the trial court conducted a hearing on the petition. Petitioner's court-appointed attorney stated that there were no amendments to the petition. The trial court granted the State's motion to dismiss. Petitioner now appeals, contending that the trial court was required to conduct an evidentiary hearing to resolve the factual dispute presented by the conflicting affidavits.
The Post-Conviction Hearing Act provides a remedy for violation of substantial constitutional rights at trial. (Ill. Rev. Stat. 1985, ch. 38, par. 122-1; People v. Cihlar (1986), 111 Ill. 2d 212, 216, 489 N.E.2d 859.) In order to require a hearing, the petitioner must substantially show that there was a violation of a constitutional right. (People v. Silagy (1987), 116 Ill. 2d 357, 365, 507 N.E.2d 830, cert. denied (1987), 484 U.S. 873, 98 L. Ed. 2d 163, 108 S. Ct. 212; People v. Arbuckle (1969), 42 Ill. 2d 177, 246 N.E.2d 240; People v. Carrion (1974), 21 Ill. App. 3d 195, 315 N.E.2d 251.) Such a showing must be based on factual allegations rather than conclusory statements. (People v. Hysell (1971), 48 Ill. 2d 522, 527, 272 N.E.2d 38.) A petitioner is not entitled to an evidentiary hearing on his petition as a matter of right. (People v. Albanese (1988), 125 Ill. 2d 100, 115, 531 N.E.2d 17, cert. denied (1989), 490 U.S. 1075, 104 L. Ed. 2d 652, 109 S. Ct. 2088; People v. Ford (1981), 99 Ill. App. 3d 973, 426 N.E.2d 340.) Rather, it is the function of the post-conviction pleadings to determine whether the petition is entitled to a hearing. (People v. Clements (1967), 38 Ill. 2d 213, 216, 230 N.E.2d 185.) Where the trial court determines that the allegations of the petition are sufficient to require a hearing, the petitioner must be afforded an opportunity to prove his allegations. (People v. Airmers (1966), 34 Ill. 2d 222, 226, 215 N.E.2d 225.) On review of dismissal of a petition, an appellate court must determine whether petitioner has alleged sufficient facts to require an evidentiary hearing. (People v. Redmond (1986), 146 Ill. App. 3d 259, 262, 496 N.E.2d 1041.) In making that determination this court must necessarily look to allegations contained in the petition, construed liberally in favor of petitioner and as set forth in light of the record and transcript. People v. Wise (1975), 26 Ill. App. 3d 158, 160, 331 N.E.2d 302.
Petitioner first argues that the fact that a counteraffidavit was filed was an improper basis for dismissing the petition. Our review of the transcript reveals that the trial court, in dismissing the petition, stated that petitioner had failed to meet his burden to sustain the allegations in the petition. Clearly, the court's basis for dismissal was not merely that a counteraffidavit had been filed.
Petitioner next argues that the fact that a counteraffidavit was submitted makes it clear that a factual dispute exists, and therefore, an evidentiary hearing was required. He relies on People v. Wegner (1968), 40 Ill. 2d 28, 237 N.E.2d 486, and People v. Brumas (1986), 142 Ill. App. 3d 178, 491 N.E.2d 773, as support. The state argues that the petition was properly dismissed because the counteraffidavit clearly and unequivocally refuted petitioner's allegations. We reject the State's reasoning. Our supreme court has held that a motion to dismiss a post-conviction petition assumes the truth of allegations to which it is directed and questions only their legal sufficiency. People v. Wilson (1968), 39 Ill. 2d 275, 277, 235 N.E.2d 561.
The State correctly distinguishes Wegner on the basis that the defendant's petition in that case was accompanied by an affidavit from the defendant's mother. However, this distinguishing factor carries little weight to defeat petitioner's argument in favor of an evidentiary hearing. We note that the Wegner court relied on an earlier case, People v. Sigafus (1968), 39 Ill. 2d 68, 233 ...