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10/20/94 PEOPLE STATE ILLINOIS v. HIGINIO RAMIREZ

October 20, 1994

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,
v.
HIGINIO RAMIREZ, APPELLANT.



Bilandic

The opinion of the court was delivered by: Bilandic

CHIEF JUSTICE BILANDIC delivered the opinion of the court:

The defendant, Higinio Ramirez, brings this appeal from an order of the circuit court of McLean County dismissing his post-conviction petition. The defendant was convicted, pursuant to a plea of guilty, of unlawful possession of more than 500 grams of cannabis with the intent to deliver, a Class 2 felony (Ill. Rev. Stat. 1989, ch. 56 1/2, par. 705(e)). Following a hearing, the trial court sentenced the defendant to five years' imprisonment and imposed a fine of $30,000, the street value of the cannabis. The defendant subsequently filed a motion to withdraw his plea of guilty, which was denied following a hearing. The defendant then filed an appeal, where the only issue raised was whether the sentence resulted from an abuse of discretion. The appellate court affirmed the defendant's conviction and sentence (No. 4-91-0524 (unpublished order under Supreme Court Rule 23)).

Following his appeal, the defendant filed a pro se petition for post-conviction relief, which alleged, inter alia: (1) that the defendant's guilty plea was coerced by a false promise from his attorney; (2) that the defendant's attorney rendered ineffective assistance at trial by promising the defendant that he had a deal wherein the Judge had agreed to sentence the defendant to a two-year term of probation; and (3) that appellate counsel rendered ineffective assistance of counsel in that he filed an appeal on grounds unknown to the defendant and without the consent of the defendant. In support of his allegations, the defendant filed an affidavit in which he declared that his attorney convinced him to plead guilty by promising that he had worked out a deal with the Judge so that the defendant would receive a two-year term of probation. The petition was also accompanied by the affidavit of Emma De La Fuente in which she stated that she paid the defendant's attorney $5,000 after he informed her that he would be the only one to file an appeal in the case. After examining the defendant's petition, the court's file and the transcript, the trial court dismissed the defendant's petition as "patently without merit" pursuant to section 122-2.1 of the Post-Conviction Hearing Act (Ill. Rev. Stat. 1991, ch. 38, par. 122-2.1) without the appointment of counsel. The appellate court affirmed the judgment with one Justice Dissenting. (242 Ill. App. 3d 954.) We allowed the defendant's petition for leave to appeal (145 Ill. 2d R. 315).

PREFATORY NOTE

The Post-Conviction Hearing Act (Ill. Rev. Stat. 1991, ch. 38, par. 122-1 et seq.) (Act) provides a remedy to a criminal defendant who claims that a substantial violation of his Federal or State constitutional rights occurred in the proceedings which resulted in his conviction. ( People v. Eddmonds (1991), 143 Ill. 2d 501, 510, 161 Ill. Dec. 306, 578 N.E.2d 952.) A post-conviction proceeding is not an appeal per se; rather, it is a collateral attack on a prior judgment. ( Eddmonds, 143 Ill. 2d at 510; People v. Caballero (1989), 126 Ill. 2d 248, 258, 128 Ill. Dec. 1, 533 N.E.2d 1089.) This court has held that the purpose of a post-conviction proceeding is to consider constitutional issues, which have not been, and could not have been, previously adjudicated. Eddmonds, 143 Ill. 2d at 510; People v. Silagy (1987), 116 Ill. 2d 357, 365, 107 Ill. Dec. 677, 507 N.E.2d 830.

Under section 122-2.1 of the Act, which is applicable here, the trial court may summarily dismiss the petition without the appointment of counsel or an evidentiary hearing if it deems the petition "frivolous" or "patently without merit." The trial court may examine the court file and any transcripts of the proceeding in which the petitioner was convicted in arriving at its decision. (Ill. Rev. Stat. 1991, ch. 38, par. 122-2.1(c).) If the petition survives summary dismissal, the court then orders the petition docketed for further consideration in accordance with sections 122-4 through 122-6. (Ill. Rev. Stat. 1991, ch. 38, par. 122-2.1(b).) At this point in the proceeding, an indigent defendant is entitled to appointment of counsel and the State is entitled to file a motion to dismiss attacking the sufficiency of the petition. (Ill. Rev. Stat. 1991, ch. 38, pars. 122-4, 122-5.) If the State's motion to dismiss is denied, the trial court conducts an evidentiary hearing and determines whether to grant or deny the relief requested in the petition. Ill. Rev. Stat. 1991, ch. 38, par. 122-6.

The central issue before this court is whether the trial court erred in summarily dismissing the defendant's petition as "patently without merit," and thereforeimproperly precluded advancement to the next stage of the proceedings, namely, appointment of counsel to the indigent defendant.

I

The defendant first argues that his petition and supporting affidavits contained sufficient factual allegations to support his claim that his guilty plea was involuntary and the result of ineffective assistance of counsel. As stated, the defendant's petition alleged that he was denied the effective assistance of counsel because his attorney induced him to plead guilty by erroneously advising him that he had worked out a deal with the Judge whereby the defendant would be sentenced to a two-year term of probation. The defendant insists that he relied on his counsel's erroneous advice, and that he was coerced into entering a plea of guilty which was therefore involuntary.

Before addressing the substance of the defendant's argument, we initially examine a procedural matter. The defendant contends that the trial court, in summarily dismissing his petition, improperly relied solely on the record before it, even though the defendant's allegations related to an off-the-record Discussion with his attorney. We find that it was appropriate for the trial court to rely on the record, given the fact that, during the guilty plea hearing, the trial court directed specific questions to the defendant which addressed the issues currently raised in the defendant's petition.

Our review of the record shows that the allegations made in the defendant's petition are refuted by the defendant's responses to the trial court's questions at the guilty plea hearing, at the sentencing hearing, and at the hearing on the motion to withdraw the defendant's guilty plea. The record reveals that the defendant's guilty plea was made knowingly, voluntarily and intelligently.

At the hearing where the defendant entered a plea of guilty, the trial court duly admonished the defendant pursuant to Rule 402 (134 Ill. 2d R. 402) before accepting the defendant's plea. As part of the admonishment, the court initially asked the defendant whether he understood the English language clearly. The defendant responded, "Yes, yes." In response to the court's question of whether he understood the nature of the charges against him, the defendant also responded in the affirmative. After the court verified that the defendant understood the plea agreement, and that the State would be ...


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