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12/13/94 PEOPLE STATE ILLINOIS v. ARTHUR L. SMITH

December 13, 1994

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
ARTHUR L. SMITH, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County. Honorable John E. Morrissey, Judge Presiding.

The Honorable Justice Hartman delivered the opinion of the court: Scariano and McCORMICK, JJ., concur.

The opinion of the court was delivered by: Hartman

JUSTICE HARTMAN delivered the opinion of the court:

Following a bench trial, defendant Arthur Smith was found guilty of aggravated criminal sexual assault, criminal sexual assault, and robbery. This Court affirmed his conviction on appeal. Defendant filed a pro se petition for post-conviction relief; the circuit court dismissed the petition, finding it to be without merit. Defendant appeals that dismissal, raising the issue of whether the court erred in dismissing his post-conviction petition.

In February 1987, defendant was charged with criminal sexual assault, aggravated criminal sexual assault, and robbery, for acts alleged to have occurred in January 1987. The circuit court held a pre-trial hearing to determine the admissibility of DNA testing and granted defendant's motion to allow DNA testing in the case. Subsequent to the pre-trial motion, defendant's expert, Dr. Charles M. Strom, informed defendant that there was not sufficient human male DNA from the vaginal swab obtained in the case to run a standard DNA analysis, but that a corporation in California may be able to conduct another type of DNA testing. Defendant nonetheless offered no further evidence of DNA testing.

In June 1989, a bench trial commenced on the above charges. The identity of the perpetrator was the central issue. Briefly, the victim testified that as she walked along a street one evening, a man accosted her, forced her into an alley, and raped and robbed her. The circuit court found defendant guilty of aggravated criminal sexual assault, criminal sexual assault, and robbery.

On July 26, 1989, the assistant public defender who represented defendant during the trial filed a motion for a new trial. The following day, defendant filed a pro se motion for a new trial, arguing that trial counsel failed to adequately present Dr. Strom's findings to the court. The circuit court concluded that since Dr. Strom's findings were inconclusive, it would have been of no use to call him as a witness. The court denied defendant's post-trial motions. On August 22, 1989, defendant filed a second pro se motion for a new trial, which the court also denied.

At some point after being charged, defendant's request to view certain police reports under the Freedom of Information Act (Ill. Rev. Stat. 1987, ch. 116, par. 201 et seq. (now 5 ILCS 140/1 et seq. (West 1992))), was denied. In August 1989, defendant had his trial attorney subpoena the Chicago Police Department, commanding them to produce any reports submitted by Officers Carroll and Bell. Almost one year later, defendant sent a letter to the police department, inquiring if they had produced the requested reports. The police department sent a note to defendant advising him that the records were sent to defendant's trial counsel on August 29, 1989.

On October 14, 1989, the circuit court sentenced defendant to 40 years for the aggravated criminal sexual assault and 7 years for the robbery conviction, to be served concurrently.

Defendant appealed his convictions, challenging the sufficiency of the evidence, the legality of his arrest, and the propriety of his sentences. This Court affirmed the decision of the circuit court. People v. Smith (1991), 215 Ill. App. 3d 1029, 576 N.E.2d 186, 159 Ill. Dec. 517.

On February 25, 1992, defendant filed a pro se petition for post-conviction relief, citing numerous errors by trial and appellate counsel, and alleging that he was denied effective assistance of counsel, On March 6, 1992, the circuit court dismissed defendant's post-conviction petition, finding it to be without merit. This Court allowed defendant's late notice of appeal.

Defendant argues that the circuit court erred in dismissing his post-conviction petition pursuant to Ill. Rev. Stat. 1987, ch. 38, par. 122-2.1 (now 725 ILCS 5/122-2.1 (West 1992)). Defendant claims that he received ineffective assistance of counsel at trial, during post-trial motions, and on appeal.

The Post-Conviction Hearing Act ("Act") (Ill. Rev. Stat. 1987, ch. 38, par. 122 (now 725 ILCS 5/122 (West 1992))), provides a remedy to criminal defendants who claim that substantial violations of constitutional rights occurred in their trial. ( People v. Owens (1989), 129 Ill. 2d 303, 307, 544 N.E.2d 276, 135 Ill. Dec. 780.) A post-conviction proceeding is not an appeal per se, but a collateral attack upon a final judgment. ( Owens, 129 Ill. 2d at 308.) A defendant is entitled to an evidentiary hearing for his post-conviction petition only when he makes a substantial showing that his constitutional rights were violated and the record or accompanying affidavits support the allegations in the petition. ( Owens, 129 Ill. 2d at 308.) The circuit court may summarily dismiss the petition if it is deemed "frivolous" or "patently without merit." (Ill. Rev. Stat. 1987, ch. 38, par. 122-2.1(a) (now 725 ILCS 5/122-2.1(a) (West 1992)).) This decision will not be reversed absent an abuse of discretion. People v. Dean (1992), 226 Ill. App. 3d 465, 467, 589 N.E.2d 888, 168 Ill. Dec. 488.

Ineffective assistance of counsel is established by showing that counsel's representation fell below an objective standard of reasonableness, and that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. ( Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052.) There is a strong presumption that counsel's conduct was within the wide ...


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