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The People of the State of Illinois v. Wayne Kirk

September 24, 2012

THE PEOPLE OF THE STATE OF ILLINOIS,
PLAINTIFF-APPELLEE,
v.
WAYNE KIRK,
DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County. No. 05 CR 12227 Honorable Charles P. Burns, Judge Presiding.

The opinion of the court was delivered by: Justice Cunningham

JUSTICE CUNNINGHAM delivered the judgment of the court, with opinion. Presiding Justice Hoffman and Justice Rochford concurred in the judgment and opinion.

OPINION

¶ 1 Defendant Wayne Kirk appeals from the second-stage dismissal of his pro se petition for relief under the Post-Conviction Hearing Act (Act). 725 ILCS 5/122-1 et seq. (West 2010). He contends that post-conviction counsel failed to provide him with reasonable assistance under Illinois Supreme Court Rule 651(c) (eff. Dec. 1, 1984) because counsel did not amend his pro se post-conviction petition or procure affidavits from witnesses.

¶ 2 BACKGROUND

¶ 3 The record shows, in relevant part, that on May 8, 2005, the defendant shot his roommate, William Herron, during an argument in the townhouse they shared with four others at 145 East 133rd Street, in Chicago. Herron suffered severe injuries as a result of the shooting, including wounds to his arm and back, a broken rib, and a collapsed lung.

¶ 4 Prior to trial, the defendant repeatedly expressed his desire for a speedy trial, and when he did so on January 24, 2006, the following discussion was had:

"MR. KIRK [defendant]: I want to go to trial without the witness. There's only one witness.

THE COURT: We'll set it for trial. Now, you understand your attorney is not able to call any witnesses, you're waiving your defense?

MR. KIRK: There is only one witness and I have an affidavit from him saying he's not going to press charges.

THE COURT: It's not up to him to press charges.

MS. SIMS [defense counsel]: I had this conversation with Mr. Kirk on more than one occasion. I explained to him it's the State's Attorney's decision whether or not to press charges.

THE COURT: Right. If he wants to go to trial without the witnesses.

MR. KIRK: There are no witnesses.

MS. [SIMS]: And we also need to file an answer alleging an affirmative defense, and I did explain to Mr. Kirk about Lynch witnesses, ...


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