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October 27, 1994


Heiple, Miller

The opinion of the court was delivered by: Heiple

JUSTICE HEIPLE delivered the opinion of the court:

Defendant, Ulece Montgomery, appeals from a judgment of the circuit court of Cook County denying his petition for post-conviction relief. Because the post-conviction proceeding involves a judgment imposing a sentence of death, defendant's appeal lies directly to this court. 134 Ill. 2d R. 651(a).

In the underlying criminal prosecution, defendant waived his right to a jury trial, stipulated to the State's evidence and was convicted of the murders of two elderly women by Judge Richard L. Samuels. Defendant also waived his right to a jury during the sentencing portion of the proceedings. After determining that two aggravating factors set forth in section 9-1(b) of the Criminal Code of 1961 (Ill. Rev. Stat. 1983, ch. 38, pars. 9-1(b)(3), (b)(6)) existed and that there were no mitigating factors sufficient to preclude a sentence of death, Judge Samuels sentenced defendant to death. This court affirmed defendant's conviction and sentence on direct appeal ( People v. Montgomery (1986), 112 Ill. 2d 517, 98 Ill. Dec. 353, 494 N.E.2d 475),and the United States Supreme Court denied certiorari ( Montgomery v. Illinois (1987), 479 U.S. 1101, 94 L. Ed. 2d 181, 107 S. Ct. 1329).

Defendant then instituted the present action under the Post-Conviction Hearing Act (Ill. Rev. Stat. 1987, ch. 38, par. 122-1 et seq.). Defendant's petition, as amended, contained 32 counts. On the State's motion, however, the post-conviction court dismissed count XI and counts XIII through XXXI, and they are not before us on this appeal.

The counts which concern us here sought a new trial based on allegations of judicial misconduct and ineffective assistance of trial and appellate counsel. Specifically, defendant alleged that the trial Judge, Judge Samuels, violated his due process rights by reneging on an improper ex parte promise made to his trial attorneys to sentence him to life imprisonment. Correspondingly, defendant claimed that his trial attorneys were ineffective because they convinced him to waive his right to a jury at sentencing based on their improper ex parte conversations with Judge Samuels. Defendant further asserted that his attorneys were ineffective because they failed to offer additional mitigation evidence which was available and failed to raise the judicial misconduct issue in the trial court. In addition, defendant alleged that his lawyer on appeal was ineffective for failing to raise on direct review the judicial misconduct issue as well as two challenges to the constitutionality of the Illinois death penalty statute.

The post-conviction court initially determined that an evidentiary hearing on all of these allegations was necessary. Following the presentation of evidence and arguments on the judicial misconduct allegations, however, the post-conviction court denied relief not only on defendant's judicial misconduct claims, but on his ineffective assistance of counsel claims as well. The post-conviction court found that during the ex parte conversationswith defendant's trial attorneys, Judge Samuels had not promised that he would sentence defendant to life imprisonment and had said or done nothing which would lead anyone to believe that he would impose a sentence less than death. Rather, the only thing discussed during the ex parte conversations was scheduling. The post-conviction court further found, after reviewing the entire record, that defendant's trial and appellate attorneys' performance was not deficient.

On this appeal, defendant offers four arguments in support of his alternative requests for a new trial or a new post-conviction evidentiary hearing. The first three arguments involve the counts in his petition for relief which dealt with the alleged ex parte conversations. Defendant's final argument concerns the remaining counts of his petition for relief, where he claims ineffective assistance of counsel. Because we conclude that defendant's third argument has merit, we do not address his other arguments. Those arguments are based upon the factual findings that were made following the post-conviction hearing. Since we remand this cause with directions to reopen the hearing, the factual findings that are before us were made on an incomplete record. The post-conviction court will have to reevaluate and reenter factual findings following the close of the evidence in the reopened hearing.

Defendant claims that the post-conviction court improperly limited his cross-examination of Judge Samuels and Shirley Thompson, Judge Samuels' court reporter for over seven years. Defendant claims that these limitations denied him a full and fair hearing. We agree.

Defendant sought to cross-examine Judge Samuels as to, first, his silence and failure to deny defendant's allegations when he was first made aware of them; second, his refusal to speak to defendant's lawyers; third, the aggravation and mitigation evidence discussedwith attorney McNamara in chambers; and fourth, Judge Samuels' familiarity with and understanding of the rules prohibiting ex parte contacts between Judges and lawyers. He sought to cross-examine Shirley Thompson about Judge Samuels' practice of meeting with lawyers in his chambers ex parte.

It is true that, in determining the merits of a post-conviction petition, a Judge has wide discretion to limit the type of evidence he will permit. ( People v. Humphrey (1970), 46 Ill. 2d 88, 91, 263 N.E.2d 77.) Nevertheless, the decision to prohibit defendant's cross-examination of Judge Samuels on these matters, which went right to the heart of the controversy, was an abuse of discretion. At issue was whether Judge Samuels made an inappropriate promise to defendant during an inappropriate ex parte communication. The post-conviction court could not have come to an informed Conclusion when it severely limited testimony from the very sources that could shed light on whether defendant's allegations were true.

Thus, we remand this cause and direct the post-conviction court to reopen the hearing to allow defendant to fully cross-examine Judge Samuels and Shirley Thompson. The post-conviction court may rely on the record and need not receive the rest of the evidence a second time. Of course, it may in its discretion allow either side to represent evidence to the extent it feels that reception will aid it in making its ultimate findings.

Our order renders the post-conviction hearing incomplete. It would therefore be premature to consider defendant's remaining allegations of error, which go to the adequacy of the post-conviction court's findings following what it perceived to be the completion of the post-conviction trial. Our order to reopen ...

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