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02/23/94 PEOPLE STATE ILLINOIS v. JAMES PATRASSO

February 23, 1994

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
JAMES PATRASSO, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County. Honorable Ronald Banks, Judge Presiding.

Rehearing Denied May 3, 1995. Released for Publication May 26, 1995.

Greiman, Tully, Cerda

The opinion of the court was delivered by: Greiman

JUSTICE GREIMAN delivered the opinion of the court:

Following a bench trial, defendant James Patrasso was convicted of two counts of attempted murder and two counts of aggravated battery and sentenced to 60 years' imprisonment for each count of attempted murder to run concurrently, and seven years' imprisonment for each count of aggravated battery to run concurrently with the attempted murder sentences. After defendant unsuccessfully appealed his conviction (see People v. Patrasso (1st Dist. 1984), No. 1-84-0467 (unpublished order under Supreme Court Rule 23)) (Patrasso I), he filed a petition for leave to appeal which the Illinois Supreme Court denied.

Thereafter, defendant filed a petition for post-conviction relief (Ill. Rev. Stat. 1991, ch. 38, par. 122-1 et seq.) which the trial court denied. Defendant now appeals the denial of that post-conviction relief on grounds that: (1) he received ineffective assistance of counsel at trial and at the post-trial stage (i.e., on his motion for new trial and on direct appeal); (2) the Illinois extended term statute's "brutal or heinous" provision is unconstitutional (Ill. Rev. Stat. 1983, ch. 38, par. 1005-5-3.2(b)(2)); and (3) the trial court abused its discretion in imposing an extended term sentence without providing him with notice of such intention.

We affirm the trial court.

On August 29, 1983, defendant was charged with two counts of attempted murder and four counts of aggravated battery for the shootings of Guy Sisco and George Boulahanis which occurred on February 13, 1982, although the indictment read "February 13, 1983." On February 13, 1982, defendant entered a bar, pointed a gun at close range at the two unarmed men and repeatedly fired the weapon, seriously injuring both men. See Patrasso I at 2.

After a bench trial conducted on September 27, 1983, the court found defendant guilty of two counts of attempted murder and two counts of aggravated battery. On November 3, defendant offered a post-trial motion to dismiss the indictment on grounds that he was not afforded due process of law because of the variance between the date of the offense as alleged by the indictment and the date of the offense proved at trial by the State. The trial court held that defendant was reasonably appraised of the date of the offense and that he waived his right to dismiss the indictment since he failed to move for dismissal on this basis at the pre-trial stage. The court then imposed sentence.

Defendant retained another attorney to proceed with his motion for new trial which alleged that: (1) defendant was denied effective assistance of counsel at trial since his attorney relied on the variance of dates without advising defendant of this strategy; and (2) the indictment should have been dismissed because the variance was material and defendant relied on it as a defense. After a hearing conducted on February 2, 1984, the court found none of defendant's arguments persuasive and considered the evidence of his guilt overwhelming.

Defendant appealed, raising the same issues argued at trial as well as an abuse of discretion by the court in imposing a sentence under the statutory extended term provision (Ill. Rev. Stat. 1983, ch. 38, par. 1005-8-2). This Court affirmed defendant's conviction and sentence, and defendant then filed a petition for leave to appeal which the Illinois Supreme Court denied.

After again engaging new counsel, defendant filed the post-conviction petition at issue which the trial court denied on August 14, 1992.

Under Illinois law a post-conviction petitioner is not entitled to an evidentiary hearing as a matter of right. ( People v. Titone (1992), 151 Ill. 2d 19, 24, 600 N.E.2d 1160, citing Ill. Rev. Stat. 1991, ch. 38, par. 122-6.) Rather, the petitioner has the burden to establish a substantial deprivation of rights under the Federal or State Constitutions. ( Titone, 151 Ill. 2d at 24.) Dismissal of a post-conviction petition is a matter within the trial court's discretion which will not be disturbed on review absent manifest error. Titone, 151 Ill. 2d at 24.

Defendant first argues that the trial court erred in dismissing his petition for post-conviction relief because the incompetent performances of his trial and post-trial counsels resulted in a breakdown of the meaningful ...


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