Appeal from the Circuit Court of Winnebago County. No. 95-CF-3062 Honorable Richard W. Vidal, Judge, Presiding.
The opinion of the court was delivered by: Justice McLAREN
Following a jury trial in the circuit court of Winnebago County, defendant, Von E. Johnson, was found guilty of armed robbery (720 ILCS 5/18--2 (West 1994)), unlawful possession of a weapon by a felon (720 ILCS 5/24--1.1(a) (West 1994)), aggravated assault (720 ILCS 5/12--2(a)(1) (West 1994)), and aggravated battery of a senior citizen (720 ILCS 5/12--4.6 (West 1994)). He was sentenced to concurrent 30-year terms of imprisonment for each offense. We affirmed defendant's convictions and sentences on direct appeal. People v. Johnson, No. 2--99--0646 (2000) (unpublished order under Supreme Court Rule 23). Defendant later filed a pro se petition for relief under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122--1 et seq. (West 2000)). The trial court appointed counsel for defendant, but later granted the State's motion to dismiss the petition. On appeal, defendant argues that he did not receive reasonable assistance of counsel in the post-conviction proceedings in conformity with Supreme Court Rule 651(c) (134 Ill. 2d R. 651(c)) and that he was entitled to an evidentiary hearing on two of his post-conviction claims. We reverse and remand.
Defendant's convictions were based on evidence of his participation in an attack on a 63-year-old man outside a restaurant in Rockford. Defendant's pro se post-conviction petition, filed on May 7, 2001, raised four claims. First, defendant claimed that he received ineffective assistance of counsel at trial because his attorney failed to inform him that the State had offered a plea bargain under which defendant would receive a 20-year prison sentence. Second, defendant claimed that he received ineffective assistance of counsel because his attorney was aware that defendant's parents could supply an alibi but he failed to call them to testify at trial. Third, defendant claimed that in sentencing defendant, the trial court improperly considered "unproven testimony" of the victim's injuries. Defendant's fourth claim--that his sentence was an abuse of discretion--was essentially the same as the third claim. In support of the petition, defendant submitted his own affidavit averring that his attorney had failed to convey the State's plea offer to him and had refused to contact defendant's parents even though defendant told the attorney that his parents would testify that defendant was at home when the crimes occurred.
On June 6, 2001, the trial court ruled that defendant's petition "is not frivolous, it does raise issues that may be of a constitutional nature." The court appointed attorney Frank Martinez to represent defendant, and the State later filed a motion to dismiss the petition, arguing that the issues raised in the petition could and should have been raised on direct appeal. On September 24, 2001, the date the motion to dismiss was originally set to be heard, the following exchange occurred:
"MR. MARTINEZ: It's a post-conviction filed by Mr. Johnson, who is in the Department of Corrections.
I have conducted an investigation, ordered the transcript, reviewed the transcripts, interviewed defense counsel, Wendell Coates. I have interviewed a witness, Mr. Johnson, that would be an alibi witness that would have been the father, Lee Johnson.
My findings are the first two allegations in Mr. Johnson's post-conviction are completely contradicted by his own witness. I don't believe they will be included in a [sic] amended petition I'm going to file.
The second two I don't think rise up to a constitutional violation; however, I will include them in an amended petition that the Court would review, and there is a motion to dismiss his petition pending. I assume it will apply to my amended motion.
I think the remaining two I would like to set this on either status call or a short oral argument hearing date or not necessarily a court date, but an oral argument hearing date to resolve the matter.
THE COURT: And are you asking that your client be writted to the court for that?
MR. MARTINEZ: Judge, I don't writ clients back unless there's an evidentiary hearing. Although I've only spoken to him once on the phone, I don't have--so far I don't have any plans to go actually to speak to him, because I understand the issues, and I have been very thorough in reviewing the history of the case, so generally for those oral argument cases I just leave them there. If the Court wishes him here, I don't have a problem writting him, I don't have a problem issuing a writ.
THE COURT: I think it is best where there are issues presented such as you mentioned by your client he may have an interest in."
The motion to dismiss was continued to November 19, 2001. No amended post-conviction petition was filed, and defendant was not personally present at the November 19, 2001, hearing. At the hearing, Attorney Martinez indicated that he had not filed an amended petition because after interviewing defendant's father and trial attorney he could not find reasonable grounds to amend the pro se petition. The trial court inquired ...