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People v. McKenzie

July 13, 2001

PEOPLE OF THE STATE OF ILLINOIS PLAINTIFF-APPELLEE
v.
DAMON MCKENZIE, DEFENDANT-APPELLANT



Appeal from the Circuit Court of the 12th Judicial Circuit, Will County, Illinois 94-CF-5732 Honorable Rodney Lechwar Presiding Judge

The opinion of the court was delivered by: Justice McDADE

UNPUBLISHED

Defendant, Damon McKenzie, appeals from the dismissal of his post-conviction petition at the second stage of the statutory procedures established at 725 ILCS 5/122-1 (West 1998). We reverse, specifically overruling this court's 1987 decision in People v. Robinson and its progeny.

FACTS

Damon McKenzie was indicted in Will County for the murder of Peter Luckett on October 24, 1994. He entered a negotiated plea of guilty to first degree murder and was sentenced on January 17, 1995, to 30 years' imprisonment.

Two years later, defendant filed a pro se post-conviction petition pursuant to the Post Conviction Hearing Act (725 ILCS 5/122-1 (West 1998)), alleging that his attorney had not advised him of an available defense which could have reduced his crime to second degree murder. He asserted that his guilty plea on first degree murder was, therefore, involuntary and should be vacated.

After review of defendant's petition, the trial court found that it presented a "possible justiciable issue" and appointed counsel on May 9, 1997, to represent defendant in the post-conviction proceedings. The appointed attorney filed an appearance on June 25, 1997, indicating that he had reviewed the petition and consulted with his client and seeking a continuance to prepare an amended petition. Additional continuances were secured by or on behalf of defendant's appointed counsel on July 16, 1997, August 6, 1997, October 1, 1997, October 22, 1997, and November 24, 1997. On January 12, 1998, counsel advised the court that he believed defendant's petition was frivolous and was granted leave to file a motion so indicating.

On March 18, 1998, counsel moved to withdraw, asserting there was no meritorious basis for the relief sought by defendant. Defendant did not object to the withdrawal. The motion was granted and defendant was given time to amend his petition pro se.

Apparently feeling that supplementation of the petition was beyond him, defendant moved for appointment of new counsel or, alternatively, to have the prior motion to withdraw stricken. Noting that it had already allowed withdrawal, without objection by defendant, the court denied the motion.

Eleven months later, on March 8, 1999, defendant filed an amended pro se petition arguing the viability of self defense in his case and asserting once again that his trial counsel had been ineffective. He reiterated his entitlement to a trial in which second degree murder was presented for the jury's consideration.

The State moved to dismiss defendant's petition and the motion was set for a hearing on July 19, 1999. Following argument by defendant and the prosecutor, the court noted that defendant had no documentary support for his claim of ineffective assistance beyond his own affidavit. The judge then reviewed the facts included in defendant's proffer at the time of his guilty plea in 1995, and concluded that he was unable to find any evidence in the record to show that advice from his trial attorney concerning self defense would have had any effect. The court, observing that "very competent" appointed counsel had found no merit in the petition and had withdrawn, granted the state's motion to dismiss defendant's post-conviction petition.

Defendant filed a timely appeal of this dismissal.

ANALYSIS

Defendant did not take a direct appeal from his conviction in 1995 and was compelled to seek relief from the conviction and sentence, if at all, through the statutory procedures of the Post Conviction Hearing Act (725 ILCS 5/122.1, et seq.) (the "act"). The act creates for him a right to reasonable assistance of counsel in post conviction proceedings. At issue in this case is when that ...


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