Appeal from the Circuit Court of Cook County. Honorable Themis N. Karnezis, Judge Presiding.
Rehearing Denied May 19, 1997. As Modified on Denial of Rehearing May 23, 1997. Released for Publication June 2, 1997.
Presiding Justice Greiman delivered the opinion of the court. Theis, J., concurs. Zwick, J., dissents.
The opinion of the court was delivered by: Greiman
PRESIDING JUSTICE GREIMAN delivered the opinion of the court:
Defendant Robert Anderson, a/k/a Martinez Moore, appeals the trial court's dismissal of his pro se petition for post-conviction relief as frivolous and patently without merit. Defendant previously had pled guilty to one count of home invasion and received an eight-year sentence to be served consecutively with the sentence from another, unrelated conviction.
Two issues are raised on appeal: (1) whether the statements made by the prosecutor during the dismissal proceeding constitute reversible error; and (2) whether defendant's pro se petition for post-conviction relief sufficiently established a claim of ineffective assistance of counsel for failure to withdraw defendant's guilty plea.
On June 11, 1993, defendant was charged by a six-count indictment that included the offense of home invasion from an incident that occurred on May 30, 1993. The charges stated that defendant, armed with a baseball bat, entered the residence of Leanya Letcher, threatened the imminent use of force against her, and struck her in the head with a baseball bat.
On November 18, 1994, defendant pled guilty to the home invasion charge. At the guilty plea hearing, defendant was represented by private counsel. Defendant's attorney stated to the court that "we have conveyed to [defendant] the result of the continuation of the [Rule] 402 conference" and defendant decided to enter a plea of guilty. The trial court advised defendant of the charges against him, the applicable sentencing range (6 to 30 years), other possible penalties (such as a fine up to $10,000), his right to a trial by jury, and other attendant legal rights, such as the right to remain silent and confront the witnesses against him. After defendant stated that he understood these rights, defendant presented his jury waiver and continued in his plea of guilty.
Defendant further agreed that he was entering his plea of guilty freely and voluntarily, that no one had threatened or forced him to plead guilty, and the recommended sentence would be eight years in prison. The State then submitted the factual basis for the charged offense and defendant stipulated to the factual basis of the charge.
The trial court accepted defendant's plea of guilty and the recommended eight-year sentence. The trial court advised defendant of his appeal rights as follows:
"I want to advise you, Mr. Moore, that you have a right to appeal the decision of this court. In order to perfect that right you must file within 30 days a notice of appeal. That must be in writing and signed by you.
If you are indigent a free copy of the transcript will be provided, also an attorney.
Any point not set out in your motion to vacate your plea of guilty will be deemed waive."
Defendant stated that he understood the trial court's instructions.
On January 26, 1995, defendant filed a pro se petition for post-conviction relief and a motion for appointment of counsel. In his petition, defendant averred that he was denied effective assistance of counsel because his counsel (1) failed to withdraw his guilty plea upon defendant's request and (2) failed to file a motion to suppress defendant's confession on the grounds that it was involuntary and coerced. Regarding his desire to withdraw his guilty plea, defendant stated that he "did inform counsel he wanted to withdraw his guilty plea and was informed counsel didn't think it was prudent." Defendant also alleged that about three weeks after pleading guilty, he had sent his attorney a letter stating that he wanted to withdraw his guilty plea and he "did not receive any reply from counsel." No affidavits or supporting documents were attached to the petition.
On February 1, 1995, the trial court denied defendant's post-conviction petition. At the proceeding, the trial court recounted defendant's guilty plea and sentence, acknowledged receipt of the documents filed by defendant, and noted the specific allegations in the petition. The trial court observed that neither a motion to withdraw his plea of guilty nor an appeal had been filed and ruled that defendant "has waived any matters which could have properly been brought by way of filing a motion to vacate or in the alternative a notice of appeal." The trial court further stated that the points raised by defendant "are in fact supported by an affidavit, that it is his affidavit" and there are no additional affidavits to support his contentions. The following exchange then occurred between the assistant State's Attorney and the court:
"MR. BYRNE [Assistant State's Attorney]: Judge, just also I recall the case as well as I don't know what the defendant's affidavit specifically states but I remember him being ...