{ "id": 3565949, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT ALEXANDER, Defendant-Appellant", "name_abbreviation": "People v. Alexander", "decision_date": "1985-09-26", "docket_number": "No. 4-84-0902", "first_page": "1047", "last_page": "1053", "citations": [ { "type": "official", "cite": "136 Ill. App. 3d 1047" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "423 N.E.2d 910", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "915" } ], "opinion_index": 0 }, { "cite": "85 Ill. 2d 326", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5469272 ], "weight": 2, "pin_cites": [ { "page": "337" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/85/0326-01" ] }, { "cite": "92 L. Ed. 1356", "category": "reporters:federal", "reporter": "L. Ed.", "pin_cites": [ { "page": "1367-68" } ], "opinion_index": 0 }, { "cite": "334 U.S. 266", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6157880 ], "weight": 2, "pin_cites": [ { "page": "280" }, { "page": "1057" } ], "opinion_index": 0, "case_paths": [ "/us/334/0266-01" ] }, { "cite": "479 N.E.2d 922", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "107 Ill. 2d 19", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3134514 ], "opinion_index": 0, "case_paths": [ "/ill-2d/107/0019-01" ] }, { "cite": "296 N.E.2d 856", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "54 Ill. 2d 280", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2933485 ], "opinion_index": 0, "case_paths": [ "/ill-2d/54/0280-01" ] }, { "cite": "477 N.E.2d 724", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "132 Ill. App. 3d 713", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3440390 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/132/0713-01" ] } ], "analysis": { "cardinality": 653, "char_count": 15254, "ocr_confidence": 0.763, "pagerank": { "raw": 3.5623140705836393e-07, "percentile": 0.8858649674170193 }, "sha256": "61cfdf66ac20a670d5b6dc051a29f5abfefb2e9bf762d02e0af3287ffd934f38", "simhash": "1:9baa585570c21e54", "word_count": 2470 }, "last_updated": "2023-07-14T21:36:17.169731+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT ALEXANDER, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE TRAPP\ndelivered the opinion of the court:\nOn October 20, 1982, the defendant, Robert Alexander, pleaded guilty to four counts of rape, four counts of burglary, four counts of home invasion, one count of armed violence and one count of deviate sexual assault. On October 3, 1984, Alexander filed a petition for post-conviction relief with respect to the convictions entered on the above guilty pleas. The petition alleged, in essence, that there was no basis for Alexander\u2019s initial detention and that he confessed to some of the offenses to which he ultimately pleaded guilty only after approximately five hours of \u201csometimes heated interrogation.\u201d According to the petition, the \u201cinformation and facts\u201d obtained by means of Alexander\u2019s illegal arrest, detention and interrogation were used to effect his guilty plea and were violative of Alexander\u2019s rights under the fourth, fifth, sixth, and fourteenth amendments to the United States Constitution (U.S. Const., amends. IV, V, VI, XIV) and under sections 2, 6 and 10 of article I of the Illinois Constitution (Ill. Const. 1970, art. I, secs. 2, 6, 10). The petition contained a prayer for an order finding that Alexander\u2019s initial arrest was illegal due to the lack of probable cause for the arrest. Alexander also requested that the court \u201corder that [his] guilty plea be withdrawn\u201d and that all evidence obtained pursuant to his allegedly illegal arrest be suppressed. The petition was accompanied by a motion requesting the appointment of counsel to represent Alexander in the proceedings on the petition and requesting that Alexander be furnished copies of the transcript and common law record of the proceedings which resulted in the guilty pleas without charge on the basis of Alexander\u2019s indigency.\nOn October 31, 1984, the State filed a motion to dismiss Alexander\u2019s petition. Relying on police reports, the State alleged that there was probable cause for Alexander\u2019s arrest; that at the time of Alexander\u2019s interrogation, he was advised of his rights and indicated that he understood them; and that Alexander at no time attempted to terminate the interrogation. The State also pointed out that Alexander was represented by privately retained counsel at the guilty plea proceedings, that Alexander\u2019s counsel did not file a motion to suppress evidence, and that at the time that he pleaded guilty, Alexander was \u201cadvised of his rights and knowingly waived those rights.\u201d\nAt a hearing held November 9, 1984, at which only the State was represented, the State requested that Alexander\u2019s petition be dismissed pursuant to section 122 \u2014 2.1 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat., 1984 Supp., ch. 38, par. 122 \u2014 2.1), which provides in pertinent part that within 30 days of the filing of a petition for post-conviction relief which the court finds to be frivolous or patently without merit in view of court files relating to the proceedings in the cause, the court shall dismiss the petition in a written order.\nFollowing a further hearing held November 26, 1984, at which Alexander again was neither represented by counsel nor personally present, the court, on November 30, 1984, entered a written order finding that (1) the matters stated in Alexander\u2019s petition were not violative of his constitutional rights; (2) the judgment in the cause had been final for more than two years; (3) at the time of sentencing, Alexander was advised of his right to appeal his sentence and/or withdraw his guilty plea and did not pursue those remedies; (4) examination \u201cof the transcript of the Defendant\u2019s sentencing\u201d revealed that the basis of Alexander\u2019s guilty pleas was \u201cfactual evidence\u201d including a palm print, as opposed to Alexander\u2019s admissions; (5) \u201cthe Defendant\u2019s counsel of choice stated that the Defendant made certain admissions in other pending criminal cases which were dismissed and further prosecution barred as part of the disposition in the above-captioned cases;\u201d and (6) Alexander\u2019s petition is \u201cfrivolous and patently without merit.\u201d\nThe same judge who considered and dismissed Alexander\u2019s petition for post-conviction relief received Alexander\u2019s guilty pleas and imposed sentence on him.\nCentral to Alexander\u2019s contentions on appeal are the following sections of the Code of Criminal Procedure of 1963:\n\u201c(a) Within 30 days after the filing and docketing of each petition [for post-conviction relief], the court shall examine such petition and enter an order thereon pursuant to this Section. If the court determines the petition is frivolous or is patently without merit, it shall dismiss the petition in a written order, specifying the findings of fact and conclusions of law it made in reaching its decision. Such order of dismissal is a final judgment and shall be served upon the petitioner by certified mail within 10 days of its entry.\n(b) If the petition is not dismissed pursuant to this Section, the court shall order the petition to be docketed for further consideration in accordance with Sections 122 \u2014 4 through 122\u2014 6.\n(c) In considering a petition pursuant to this Section, the court may examine the court file of the proceeding in which the petitioner was convicted, any action taken by an appellate court in such proceeding and any transcripts of such proceeding.\u201d Ill. Rev. Stat., 1984 Supp., ch. 38, par. 122 \u2014 2.1.\n\u201cIf the petition is not dismissed pursuant to Section 122 \u2014 2.1, and alleges that the petitioner is unable to pay the costs of the proceeding, the court may order that the petitioner be permitted to proceed as a poor person and order a transcript of the proceedings delivered to petitioner in accordance with Rule of the Supreme Court.\u201d Ill. Rev. Stat., 1984 Supp., ch. 38, par. 122-4.\n\u201cAll proceedings under this Article [the Post-Conviction Hearing Act] shall be conducted and all petitions shall be considered by a judge who was not involved in the original proceeding which resulted in conviction.\u201d (Ill. Rev. Stat., 1984 Supp., ch. 38, par. 122 \u2014 8.)\nAlexander asserts that because of (1) the trial court\u2019s failure to dismiss his petition within 30 days of its filing, (2) the consideration of Alexander\u2019s petition by the same judge who accepted his guilty pleas, and (3) the holding of hearings as to Alexander\u2019s petition in which only the State was allowed to participate, the proceedings which preceded dismissal of his petition failed to conform to requirements of sections 122 \u2014 2.1 and 122 \u2014 8 to the extent that reversal of the trial court\u2019s dismissal of the petition and remandment of the cause for further proceedings in the trial court is required.\nAlexander finally contends that the statutes providing for dismissal of petitions for post-conviction relief prior to the appointment of counsel to represent the petitioner are unconstitutional because they conflict with a supreme court rule which Alexander asserts requires the appointment of counsel to represent all petitioners for post-conviction relief (87 Ill. 2d R. 651(c)) and because they violate the equal protection rights of indigent petitioners for post-conviction relief.\nIn our recent decision in People v. Baugh (1985), 132 Ill. App. 3d 713, 477 N.E.2d 724, we rejected the two constitutional arguments which Alexander advances. Alexander has presented no convincing reasons why we should reconsider those aspects of the Baugh decision, and we therefore decline to do so.\nThe State asserts for the first time on appeal that section 122 \u2014 8 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat., 1984 Supp., ch. 38, par. 122 \u2014 8), which requires that a petition for post-conviction relief be considered by a judge who was not involved in the proceedings which led to the petitioner\u2019s conviction is, if mandatory in nature, an unconstitutional infringement on the powers of the judiciary in that it impinges upon the circuit court\u2019s authority to regulate its dockets, calendars, and business (Ill. Rev. Stat. 1983, ch. 110, par. 1 \u2014 104(b)) and the obligations of judges to expeditiously and efficiently handle all matters assigned to them. (87 Ill. 2d R. 61(c)(7).) We need not address the State\u2019s constitutional argument as to the different judge provision (Ill. Rev. Stat., 1984 Supp., ch. 38, par. 122 \u2014 8) for the State has waived that argument by failing to first present it to the trial court. People v. Pickett (1973), 54 Ill. 2d 280, 296 N.E.2d 856.\nUpon the statutory issue, we find that the trial court erred in failing to assign the cause to a judge who did not participate in the proceedings which resulted in Alexander\u2019s guilty plea. The statutory provision at issue, by its plain language, requires that a petition for post-conviction relief be assigned to a judge who did not preside at the proceedings which resulted in the defendant\u2019s conviction. (Ill. Rev. Stat., 1984 Supp., ch. 38, par. 122 \u2014 8.) We must, therefore, hold that the circuit court\u2019s failure to assign Alexander\u2019s petition for post-conviction relief to such a judge requires reversal of the circuit court\u2019s order dismissing Alexander\u2019s petition and remandment of this cause for consideration of the petition by a judge who was not involved in the proceedings which culminated in Alexander\u2019s guilty plea. Compare People v. Ruiz (1985), 107 Ill. 2d 19, 479 N.E.2d 922.\nAn additional factor supporting reversal of the trial court\u2019s decision and remandment of this cause is the ex parte nature of the hearings of November 9 and 26, 1984, at which Alexander was neither personally present nor represented by counsel. A reading of the relevant statutory provisions (Ill. Rev. Stat., 1984 Supp., ch. 38, pars. 122 \u2014 2.1(a), (c)) leads to the ineluctable conclusion that in providing for the dismissal of petitions which are frivolous or patently without merit prior to the appointment of counsel to represent the petitioner, it could not have been the legislative intent to sanction ex parte hearings of the type which were held in the case at bar prior to dismissal of Alexander\u2019s petition. Rather, at this preliminary stage of the proceedings, the trial judge alone must consider the petition in view of the relevant court files. The State is to have no input with regard to the circuit court decision at this stage of the proceedings. Even absent the above statutory provisions, we would nevertheless be constrained to hold that the hearings at issue were improper, for fundamental fairness and orderly procedure demand that both parties be permitted to participate, either in person or through counsel, at hearings relating to petitions for post-conviction relief, even where the hearings are confined solely to legal arguments. One-sided hearings, such as those held in the case at bar, may in some circumstances unduly prejudice the petitioner. See Price v. Johnson (1948), 334 U.S. 266, 280, 92 L. Ed. 1356, 1367-68, 68 S. Ct. 1049, 1057.\nBecause of our decision, we need not consider the arguments of the parties as to whether the claims asserted in Alexander\u2019s petition are meritorious.\nDue to the trial court\u2019s conducting two ex parte hearings on Alexander\u2019s petition without the appointment of counsel to represent Alexander, and because Alexander\u2019s petition was not assigned to a judge not involved in the proceedings which resulted in the convictions of Alexander on the basis of his guilty pleas, we must reverse the judgment of dismissal and remand this cause to the circuit court.\nDefendant argues that by reason of the failure of the trial court to dismiss the petition within 30 days as provided in section 122 \u2014 2.1 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat., 1984 Supp., ch. 38, par. 122 \u2014 2.1), the order is void and that for such reason the cause must be remanded to the circuit court to proceed to hearing upon the petition. We do not agree for the reason that analysis of the cited opinion in In re T.E. (1981), 85 Ill. 2d 326, 423 N.E.2d 910, does not provide or require such result.\nThat opinion involved an appeal of an order revoking probation. Such order was based upon an order which granted probation but which failed to fix or state a term of probation. The appellate court determined that such order was erroneous and voidable for want of statutory authority to grant probation and remanded to the trial court to fix a term of probation.\nThree supreme court justices concluded that the order granting probation was void, while three justices believed that such order granting probation was only voidable. Mr. Justice Simon, concurring with the majority, noted:\n\u201cAlthough I concur in the majority opinion and judgment, I feel it in order to observe that while the majority and dissent express different views of jurisdiction to revoke the probationary disposition in these cases, by accepting either approach the same result can be reached. Under the majority view the original dispositional orders were void. Consequently each minor is theoretically still subject to an appropriate dispositional order on the original adjudication of delinquency.\u201d 85 Ill. 2d 326, 337, 423 N.E.2d 910, 915.\nWe interpret this language as having the net effect that upon reversal of the orders of granting probation and revoking probation respectively, the cause continued to pend in the trial court upon an adjudicatory order awaiting a dispositional proceeding and order.\nWe believe that such conclusion is consistent with the remanding order of the supreme court, which affirmed the action of the appellate court reversing the trial court\u2019s orders granting probation and revoking probation, but, in addition, reversed that portion of the appellate court order which remanded to the trial court for purposes of fixing a definite term. The supreme court mandate remanded to the circuit court for further proceedings consistent with the views expressed. In two cases consolidated with In re T.E., the appellate court reversed the orders of the trial court which granted probation and revoked probation respectively, and remanded to the trial court for further proceedings. The supreme court affirmed such dispositions.\nUpon the hypothesis that the order of the trial court dismissing the post-conviction petition was void for failure to comply with statutory requirements of sections 122 \u2014 2.1 and 122 \u2014 8 of the Code, rather than voidable and must, therefore, be reversed, the cause continues to pend in the trial court upon the post-conviction petition filed by defendant.\nThe order of the trial court dismissing the petition is reversed, and the cause is remanded with directions that the petition be assigned to a judge who did not participate in the underlying criminal proceedings and to proceed thereafter as provided in section 122 \u2014 2.1 of the Code (Ill. Rev. Stat., 1984 Supp., ch. 38, par. 122 \u2014 2.1).\nReversed and remanded with directions.\nGREEN, P.J., and WEBBER, J., concur.", "type": "majority", "author": "JUSTICE TRAPP" } ], "attorneys": [ "Daniel D. Yuhas and Lawrence Bapst, both of State Appellate Defender\u2019s Office, of Springfield, for appellant.", "Jeffrey K. Davison, State\u2019s Attorney, of Decatur (Robert J. Biderman and Linda Welge, both of State\u2019s Attorneys Appellate Service Commission, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT ALEXANDER, Defendant-Appellant.\nFourth District\nNo. 4\u201484\u20140902\nOpinion filed September 26, 1985.\nDaniel D. Yuhas and Lawrence Bapst, both of State Appellate Defender\u2019s Office, of Springfield, for appellant.\nJeffrey K. Davison, State\u2019s Attorney, of Decatur (Robert J. Biderman and Linda Welge, both of State\u2019s Attorneys Appellate Service Commission, of counsel), for the People." }, "file_name": "1047-01", "first_page_order": 1069, "last_page_order": 1075 }