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09/30/97 PEOPLE STATE ILLINOIS v. NORMAN EAGLIN

September 30, 1997

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
NORMAN EAGLIN, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County. P.C. 88 C 660474. Honorable Robert Krop, Judge Presiding.

Released for Publication November 26, 1997.

Presiding Justice Greiman delivered the opinion of the court. Theis and Zwick, JJ., concur.

The opinion of the court was delivered by: Greiman

PRESIDING JUSTICE GREIMAN delivered the opinion of the court:

Defendant Norman Eaglin appeals the trial court's dismissal of his postconviction petition without conducting an evidentiary hearing. Defendant asserts that the factual allegations stated in his postconviction petition were sufficient to warrant an evidentiary hearing and thus, the trial court erred in granting the State's motion to dismiss. In addition, the State raises the issue of whether the trial court improperly declined to sentence defendant as an habitual criminal.

For the reasons that follow, we affirm the dismissal of defendant's postconviction petition. We further find that the elements of the Habitual Criminal Act (Act) (720 ILCS 5/33B-1 (West 1994)) have not been satisfied and, thus, we cannot sentence defendant as an habitual criminal as urged by the State.

Following a jury trial in 1989, defendant was convicted of two counts of armed robbery based on the robbery of an ice cream store at the time two store employees and the store owner were present. At sentencing, the trial court specifically elected not to sentence defendant as a habitual criminal and imposed a 52-year sentence of imprisonment. On direct appeal, this court affirmed defendant's conviction. People v. Eaglin, No. 1--89--2513 (1992) (unpublished order under Supreme Court Rule 23).

On April 5, 1993, defendant filed a pro se petition for postconviction relief, challenging, in pertinent part, the legality of his arrest and the identification of him by the victims outside the store where the robbery occurred.

On March 11, 1994, the State filed a motion to dismiss defendant's postconviction petition. The State contended that defendant's allegations (1) are barred by the doctrines of res judicata and waiver where defendant already has appealed his conviction and (2) are not sufficient to require a hearing.

On March 24, 1995, the trial court conducted a hearing. On behalf of defendant, an assistant public defender informed the court that he had complied with the statute, read defendant's pro se petition, read the relevant transcripts and orders, found "no new issues with which to supplement the petition," and was "prepared to argue the [defendant's] petition as it stand[s]." To certify his verbal representations to the court, the assistant public defender also filed a certificate in accordance with Supreme Court Rule 651(c). 134 Ill. 2d R. 651(c). After hearing counsel's arguments, the trial court granted the State's motion to dismiss and ordered that defendant's postconviction petition be dismissed.

On appeal, defendant asserts that an evidentiary hearing was warranted. Defendant argues that his postconviction petition alleged sufficient factual claims to establish that the police did not have probable cause to arrest him, that his trial attorney was ineffective for failing to move to quash the arrest, and that the subsequent identifications of him by two victims should have been suppressed as the fruit of the unlawful arrest.

The filing of a postconviction petition does not entitle a defendant to an evidentiary hearing as a matter of right. People v. Whitehead, 169 Ill. 2d 355, 370-71, 215 Ill. Dec. 164, 662 N.E.2d 1304 (1996). The Post-Conviction Act provides for an evidentiary hearing at the discretion of the trial court. 725 ILCS 5/122-6 (West 1994). On review, we will not disturb the trial court's determinations unless manifestly erroneous. Whitehead, 169 Ill. 2d at 365.

The Post-Conviction Act further provides that "any claim of substantial denial of constitutional rights not raised in the original or an amended petition is waived." 725 ILCS 5/122-3 (West 1994). In addition, the doctrines of res judicata and waiver limit the scope of review of a postconviction petition to only those issues that have not and could not have been previously adjudicated. E.g., People v. Maxwell, 173 Ill. 2d 102, 123, 219 Ill. Dec. 1, 670 N.E.2d 679 (1996). An issue that could have been raised on direct appeal is, therefore, waived in the postconviction stage. People v. Orange, 168 Ill. 2d 138, 154, 213 Ill. Dec. 589, 659 N.E.2d 935 (1995).

In the present case, we first find that defendant waived any claim of ineffectiveness of trial counsel because defendant's post-conviction petition makes no allegation that his trial ...


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