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June 2, 1994


Appeal from the Circuit Court of Kane County. No. 89-CF-424. Honorable Thomas E. Hogan, Judge, Presiding.

Petition for Leave to Appeal Denied December 6, 1995.


The opinion of the court was delivered by: Mclaren

JUSTICE McLAREN delivered the opinion of the court:

The defendant, Michael Guillen, appeals the denial of his petition for post-conviction relief. For the following reasons, we affirm.

The defendant was convicted of first degree murder for the shooting and death of Harry Williams. (Ill. Rev. Stat. 1989, ch. 38, par. 9-1 (now codified, as amended, at 720 ILCS 5/9-1 (West 1992)).) He was also convicted of the attempted murder of Ocheion Wilson. (Ill. Rev. Stat. 1989, ch. 38, par. 8-4(a) (now codified, as amended, at 720 ILCS 5/8-4(a) (West 1992)).) The defendant was sentenced to a term of 50 years imprisonment for murder and 25 years imprisonment for attempted murder, to be served concurrently. The convictions were affirmed by this court in People v. Guillen (Sept. 22, 1992), No. 2-90-1345 (unpublished order under Supreme Court Rule 23).

On February 23, 1993, the defendant, through his attorneys, filed a petition for post-conviction relief pursuant to the Post-Conviction Hearing Act (the Act), which alleged the denial of the effective assistance of counsel at the trial and appellate levels. (725 ILCS 5/122-1 et seq. (West 1992).) Specifically, the petition alleged that trial counsel was ineffective for failing to prove the defendant's physical incapacity on the date of the shooting in a significant manner. The petition further alleged that he was denied the effective assistance of appellate counsel because his attorney on the direct appeal failed to raise the issue of the effectiveness of trial counsel.

Prior to any rulings by the trial court concerning the frivolity of the defendant's petition, the State filed a motion to dismiss. (725 ILCS 5/122-5 (West 1992).) After arguments on the defendant's petition by both parties, the court entered an order dismissing the petition. On appeal, the defendant contends that order dismissing the petition should be reversed and the cause remanded because the State's premature motion to dismiss circumvented the proper process under the Act.

A post-conviction proceedings is a collateral attack on a judgment of conviction which provides a remedy to criminal defendants who claim a substantial violation of their constitutional rights. ( People v. Seehausen (1993), 245 Ill. App. 3d 506, 510, 185 Ill. Dec. 817, 615 N.E.2d 376.) The Act sets forth a three-step procedure to be followed in post-conviction proceedings. The first step requires the trial court to review the defendant's petition. If the trial court determines that the petition is frivolous or patently without merit, it can be summarily dismissed without an evidentiary hearing or the appointment of counsel. ( People v. Fern (1993), 240 Ill. App. 3d 1031, 1037, 180 Ill. Dec. 651, 607 N.E.2d 951.) Section 122-2.1 specifies the following procedures to be followed in this first step:

"(a) Within 90 days after the filing and docketing of each petition the court shall examine such petition and enter an order thereon pursuant to this Section.

(2) If the petitioner is sentenced to imprisonment and the court determines the petition is frivolous or is patently without merit, it shall dismiss the petition in a written order, specifying the findings of fact and Conclusions of law it made in reaching its decision. Such order of dismissal is a final judgment and shall be served upon the petitioner by certified mail within 10 days of its entry." (Emphasis added.) (725 ILCS 5/122-2.1 (West 1992).)

Effective January 1, 1993, this portion of the Act was amended to extend the time for the court's initial review of the petition from 30 days to 90 days.

If the court does not enter an order dismissing the petition as frivolous and patently without merit within 90 days, the court must order the petition to be docketed for further consideration. (725 ILCS 5/122-2.1(b) (West 1992).) The State must answer the defendant's petition or move to dismiss within 30 days after the order to docket the petition is entered. (725 ILCS 5/122-5 (West 1992).) In this second stage, the petitioner is entitled to the appointment of counsel. (725 ILCS 5/122-4 (West 1992); People v. Mackins (1991), 222 Ill. App. 3d 1063, 1067, 165 Ill. Dec. 454, 584 N.E.2d 888.) A hearing is held to determine the merits of the defendant's petition, which is similar to a hearing on a motion for summary judgment in civil cases, wherein the trial court hears arguments concerning the merits of the petition from both parties and considers any affidavits that are presented.

If the State does not file a motion to dismiss, or if the motion to dismiss is denied, the petitioner advances to the final stage of post-conviction proceedings. An evidentiary hearing is held, during which the trial court receives proof of the merits of the defendant's petition in the form of affidavits, depositions, oral testimony, or other evidence. (725 ILCS 5/122-6 (West 1992).) A defendant is not entitled to an evidentiary hearing unless the allegations in his petition, supported by the trial record or by accompanying ...

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