Appeal from Circuit Court of McLean County No. 92CF631 Honorable Donald D. Bernardi, Judge Presiding.
The opinion of the court was delivered by: Justice Steigmann
Defendant, Howard Wilson, appeals the trial court's second-stage dismissal of his second post-conviction petition, arguing that (1) he was denied his right to conflict-free counsel in post-conviction proceedings; and (2) his felony murder conviction should be reversed because the statute of limitations for the underlying felony had expired prior to the State's charging him. We affirm.
In July 1992, the State charged defendant with (1) three counts of first degree murder, alleging, in pertinent part, that on or about October 27, 1988, he killed Scott Alan Burton, Robert J. Webb, and Whitney Laurel Cole, by shooting them with a handgun "while *** committing the offense of armed robbery" (Ill. Rev. Stat. 1987, ch. 38, par. 9-1(a) (now 720 ILCS 5/9-1(a) (West 1992))); (2) one count of armed robbery (Ill. Rev. Stat. 1987, ch. 38, par. 18-2(a) (now 720 ILCS 5/ 18-2(a) (West 1992))); and (3) one count of perjury (Ill. Rev. Stat. 1987, ch. 38, par. 32-2 (now 720 ILCS 5/32-2 (West 1992))).
In February 1993, defendant filed a motion to dismiss the armed robbery count, alleging that the State initiated prosecution of the offense after the three-year statute of limitations had expired. In March 1993, the trial court granted defendant's motion and dismissed the armed robbery charge against defendant.
Later in March 1993, a jury convicted defendant of three counts of first degree murder (720 ILCS 5/9-1(a) (West 1992)) and one count of perjury (720 ILCS 5/32-2 (West 1992)). The trial court later sentenced him to three concurrent terms of natural life in prison on the murder convictions and a concurrent five-year prison term on the perjury conviction. Defendant appealed, and this court affirmed his convictions and sentences. People v. Wilson, 271 Ill. App. 3d 943, 649 N.E.2d 1377 (1995).
In February 1994, defendant pro se filed a petition for relief under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 through 122-8 (West 1992)). The trial court later dismissed defendant's petition, upon finding it frivolous and patently without merit (725 ILCS 5/122-2.1 (West 1992)).
In December 1999, defendant pro se filed a second post-conviction petition. In March 2001, the trial court appointed the public defender to represent defendant. However, in January 2002, the court allowed the public defender to withdraw as defendant's post-conviction counsel due to a conflict. Later that month, the court appointed attorney William Yoder as defendant's post-conviction counsel.
In November 2002, Yoder filed an amended post-conviction petition on defendant's behalf. The State then filed a motion to dismiss defendant's amended post-conviction petition, and following a November 27, 2002, hearing on the State's motion, the trial court took the matter under advisement. On December 2, 2002, Yoder was appointed McLean County State's Attorney. On December 6, 2002, Yoder filed a motion for appointment of a special prosecutor in defendant's case. On December 9, 2002, the court granted Yoder's motion and appointed a special prosecutor. On January 10, 2003, the court entered an order granting the State's motion to dismiss defendant's amended post-conviction petition.
A. Defendant's Post-conviction Representation
Defendant first argues that we should reverse the trial court's dismissal of his amended post-conviction petition because he was denied his right to conflict-free counsel in the post-conviction proceedings. Specifically, he contends that during those proceedings, Yoder's simultaneous representation of ...