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People v. Sawczenko

April 12, 2002

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
STEVEN SAWCZENKO, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Du Page County. No. 94-CF-1190 Honorable Perry R. Thompson, Judge, Presiding.

The opinion of the court was delivered by: Justice Kapala

Released for publication May 1, 2002.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
STEVEN SAWCZENKO, DEFENDANT-APPELLANT.

Appeal from the Circuit Court of Du Page County. No. 94-CF-1190 Honorable Perry R. Thompson, Judge, Presiding.

The opinion of the court was delivered by: Justice Kapala

PUBLISHED

 Defendant, Steven Sawczenko, appeals from an order of the circuit court of Du Page County summarily dismissing his second post-conviction petition without an evidentiary hearing. For the reasons that follow, we reverse and remand.

I. FACTS

On September 12, 1994, defendant pleaded guilty to aggravated battery to a peace officer (720 ILCS 5/12--4(b)(6) (West 1992)). The trial court sentenced defendant to 5 years' imprisonment to be served consecutively to a 20-year prison term for a separate, unrelated offense. On October 7, 1994, defendant filed a pro se motion to withdraw his plea of guilty and vacate the judgment. Subsequently, defendant appeared before the trial court and withdrew that motion. Defendant did not file a direct appeal of his conviction or sentence.

On September 11, 1997, defendant filed a pro se post-conviction petition pursuant to the Post-Conviction Hearing Act (Act) (725 ILCS 5/122--1 et seq. (West 1996)) supported by his own affidavit. In the petition, defendant alleged that he was on psychotropic medication at the time he entered his plea of guilty; that there was a bona fide doubt as to his fitness to stand trial due to this medication; that he was entitled to a fitness hearing; and that the assistant State's Attorney handling his case knew he was medicated, yet failed to inform the trial court. Defendant asserted that his right to due process of law under the United States Constitution was violated because he was denied a fitness hearing and that his trial counsel was ineffective for failing to request a fitness hearing on his behalf.

After counsel was appointed, defendant filed an amended post-conviction petition. On October 21, 1998, the State filed a motion to dismiss defendant's post-conviction petition. Judge Thomas E. Callum denied the motion to dismiss on January 27, 1999, ruling that defendant was entitled to a hearing on the allegations he raised regarding the psychotropic medication he was taking at the time he pleaded guilty.

On February 19, 1999, the State filed an answer to defendant's post-conviction petition. On November 1, 1999, defendant appeared before Judge Kathryn E. Creswell with his attorney. Defendant's attorney informed the trial court that defendant was moving to withdraw his post-conviction petition "based on some legal research that [defendant] has done, as well as some religious beliefs." Defendant's attorney also indicated that defendant understood that the trial court had previously ruled that he was entitled to an evidentiary hearing on his petition. The trial court asked defendant if what his attorney said was true, and defendant responded, "Yes, that is correct." When asked if he was taking any type of prescription medication at that time, defendant said, "Not at all." The trial court asked defendant if he understood that if he withdrew his petition he would be foreclosed from pursuing any issues or claims of error at a future date. Defendant said, "I do[,] your Honor." Defendant also told the trial court that he understood that the State's motion to dismiss his petition had been denied and that if he withdrew his petition there would be no evidentiary hearing. Finally, when the trial court told defendant that he would have to serve out the rest of his sentence and that would be the end of it, defendant said, "I understand." With that, the trial court allowed defendant to withdraw his post-conviction petition and remanded defendant to the custody of the Illinois Department of Corrections.

On August 18, 2000, defendant filed a second petition for post-conviction relief. Defendant alleged various claims of ineffective assistance of post-conviction counsel. In addition, defendant alleged that, although he was not on any medication when he withdrew the prior post-conviction petition, he was not in a proper frame of mind to make that decision. Defendant alleged that "extreme religiousism [sic]" due to insomnia led him to believe that he was to withdraw his post-conviction petition "by divine providence." Defendant also requested the reinstatement of the claims he made in his first post-conviction petition.

On November 13, 2000, defendant appeared before Judge Perry R. Thompson at a status hearing on his second post-conviction petition. The trial court asked defendant what he was asking for in his petition and defendant said he wished to "[r]einstate the post conviction [sic] petition on the same issues that it was originally raised and additional issues on the supplemental petition." When asked for the State's position, the assistant State's Attorney declined to participate. The trial court told defendant that he had read defendant's first and second post-conviction petitions and reviewed the file. The trial court then confirmed the procedural details with defendant before concluding, "I frankly don't see a basis for relief here under the [P]ost[-][C]onviction [Hearing] [A]ct, so I am going to deny it." The assistant State's Attorney then asked the trial court if he was finding the latest pleading frivolous. The trial court responded that the pleading "[d]oes not state a basis upon which a [sic] relief can be drawn upon the act. Draw an order, denied." The trial court entered a written order stating in pertinent part:

"IT IS HEREBY ORDERED: upon examination of petition by this Court there is a finding said petition is frivolous and patently without merit pursuant to 725 ILCS 5/122--2.1."

Defendant timely appeals from that order.

II. DISCUSSION

A. Stage-One ...


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