The opinion of the court was delivered by: Justice Wolfson
Appeal from the Circuit Court of Cook County. Honorable Mary Ellen Coghlan, Judge Presiding
Following a bench trial, defendant Jethro Bates was convicted of first degree murder and sentenced to a 32-year prison term. We affirmed defendant's conviction and sentence on direct appeal. People v. Bates, 1-94-3720 (unpublished order pursuant to Supreme Court Rule 23). Defendant subsequently filed a timely pro se post-conviction petition. The trial court granted the State's motion to dismiss defendant's petition. Defendant appeals, contending the trial court erred in dismissing his petition. We reverse and remand for an evidentiary hearing on the allegations raised in defendant's petition.
Defendant was convicted and sentenced for shooting and killing Kevin Tarver. Though defendant claimed he shot Tarver in self-defense after Tarver threatened him with a gun, the State's witness denied ever seeing a gun in Tarver's hand. According to this witness, defendant and Tarver were having an argument when defendant pulled out a gun and shot Tarver.
In his pro se petition for post-conviction relief, defendant alleged ineffective assistance of counsel due, in part, to his attorney's failure to subpoena Willie Sims as a witness. According to defendant's petition, Sims "made the phone call to the police and observed the victim's body" and "would have testified as to the weapon or what he saw."
The trial court appointed counsel to represent defendant on his post-conviction petition pursuant to Supreme Court Rule 651(c)(134 Ill. 2d R. 651(c)). The State filed a motion to dismiss defendant's petition, arguing his failure to attach an affidavit from Sims was fatal to his petition.
Defense counsel filed a motion for continuance asking the court to allow her additional time to amend the pro se petition. The motion says:
"Willie Sims is an unbiased witness who could exonerates [sic] Petitioner by corroborating Petitioner's self-defense. *** The police reports *** indicated that Willie Sims informed police that he saw a gun lying on the ground next to the deceased's hand when Sims arrived on the scene. Sims also informed the police that an unknown male took the gun prior to the police arriving."
Counsel concludes that the "deficiencies" in defendant's pro se petition could be overcome by an affidavit from Sims.
The trial court granted defendant's motion for continuance. However, defense counsel never filed an amended petition. At the hearing on the motion to dismiss, counsel said:
"We have not been able to locate Mr. Sims and we do believe that had we located him that Mr. Bates would have had a meritorious claim but without locating this witness we really can't proceed. We've made all diligent efforts to locate him."
The trial court dismissed the ...