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People v. Thompson

June 12, 2002

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
TOMMY THOMPSON, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County. Honorable Michael B. Bolan, Judge Presiding.

The opinion of the court was delivered by: Justice Cerda

Defendant, Tommy Thompson, whose convictions and sentences for first degree murder and armed robbery were affirmed by this court on direct appeal, appeals the order of the circuit court summarily dismissing his second petition for relief under the Post Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 1998)) as procedurally barred. In his second petition, defendant asserts a speedy trial violation as well as various claims of ineffective assistance of trial counsel and assertions of evidentiary errors committed by the circuit court during the course of his trial proceedings. Defendant abandons those claims on appeal and, instead, challenges for the first time (1) the validity of Public Act 83-942, which effectively amended the Act to provide for, inter alia, summary dismissals of post-conviction petitions after an initial review by the circuit court, (2) the propriety of the circuit court's order directing that his sentences for murder and armed robbery run consecutively, and (3) the constitutionality of his sentences as violative of his constitutional rights guaranteed under the fourteenth amendment of the federal constitution (U.S. Const., amend. XIV). Defendant has also filed a pro se supplemental brief on appeal, raising additional arguments concerning the effectiveness of his trial counsel and the fairness of both his trial and sentencing proceedings.

For the following reasons, we affirm.

BACKGROUND

Following a jury trial in mid-1995, defendant was convicted of three counts of first-degree murder (720 ILCS 5/9-1(a)(1), (a)(2), (a)(3) (West 1994)), and two counts of armed robbery (720 ILCS 5/18-2 (West 1994), in connection with the shooting death of Chicago cab driver James Dryer. The evidence introduced at trial established that in the early morning hours of July 22, 1992, defendant and his accomplice, Amir Richardson, *fn1 devised a plan to either rob someone or steal a car. Richardson, whom defendant knew was armed with a handgun, eventually flagged down a cab being driven by Dryer. Defendant and Richardson entered the vehicle and instructed Dryer to drive to an address near 119th and Lowe streets in Chicago.

Upon arriving at the foregoing address, Richardson shot Dryer once in the back of the head. Defendant then exited the vehicle, opened the driver's side door, and took $23 from Dryer's front pocket.

For his role in the incident, defendant was sentenced to extended terms of 70 years' imprisonment for murder and 35 years' imprisonment for armed robbery, the enhancement of each sentence being predicated upon the elderly age of the victim. Defendant was further ordered to serve his sentences consecutively to one another.

On direct appeal, we affirmed defendant's convictions but vacated the judgments on two of the murder counts and on one of the armed robbery counts. We further vacated defendant's sentence for armed robbery and imposed a term of 30 years' imprisonment. People v. Thompson, No. 1-95-4424 (March 12, 1998) (unpublished order pursuant to Supreme Court Rule 23). Defendant's leave for appeal with our supreme court was thereafter denied on September 12, 1998.

On December 4, 1998, defendant filed pro se for post-conviction relief under the Act, alleging various claims of ineffective assistance of both trial and appellate counsel. Finding defendant's post-conviction allegations to be frivolous and patently meritless, the circuit court dismissed defendant's petition on January 28, 1999. While he initially sought review with this court in February 1999, defendant voluntarily abandoned his appeal on September 21, 1999.

While his original appeal was pending, defendant filed a second post-conviction petition, again asserting ineffective assistance on the part of his trial attorney as well claims that he was denied his constitutional right to a speedy trial and that he was deprived of a fair trial by the introduction of improper and highly inflammatory evidence. Finding defendant's post-conviction claims procedurally barred, the circuit court dismissed defendant's second petition as frivolous on September 20, 1999. Defendant's timely appealed followed.

ANALYSIS

I.

We initially address the State's motion to strike defendant's supplemental pro se brief, which was ordered taken with the case. Defendant is presently represented by the State Appellate Defender, which has submitted opening and reply briefs on defendant's behalf raising and briefing several assertions of error which purportedly entitle defendant to relief. By his pro se brief, defendant raises points that are not presented and argued by his appointed counsel.

As the State observes, a defendant has no right to both self-representation and the assistance of counsel. People v. McDonald, 168 Ill. 2d 420, 435, 660 N.E.2d 832, 838 (1995); People v. Lighthall, 175 Ill. App. 3d 700, 704-05, 530 N.E.2d 81, 84 (1988). If a defendant is represented by appellate counsel, whether appointed or privately retained, he has no right to a "hybrid appeal" in which he alternates between being represented by counsel and proceeding pro se through the filing of a supplemental pro se brief. People v. Woods, 292 Ill. App. 3d 172, 179, 684 N.E.2d 1053, 1058 (1997). Defendant, therefore, has no right to present his pro se arguments to this court (see McDonald, 168 Ill. 2d at 435, 660 N.E.2d at 838; Woods, 292 Ill. App. 3d at 179, 684 N.E.2d at 1053; Lighthall, 175 Ill. App. 3d at 705, 530 N.E.2d at 81), and accordingly we grant the State's motion and strike defendant's supplemental pro se brief.

II.

A claim for post-conviction relief under the Act is not an appeal from the underlying trial proceedings but, rather, represents a collateral attack on the earlier judgment of conviction or sentence in which the defendant seeks to establish federal or state constitutional violations that escaped earlier ...


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