{ "id": 3642628, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANDREW O'NEAL, Defendant-Appellant", "name_abbreviation": "People v. O'Neal", "decision_date": "1986-10-06", "docket_number": "No. 4\u201486\u20140242", "first_page": "87", "last_page": "94", "citations": [ { "type": "official", "cite": "148 Ill. App. 3d 87" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "491 N.E.2d 486", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "142 Ill. App. 3d 139", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3449632 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/142/0139-01" ] }, { "cite": "146 Ill. App. 3d 567", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3570938 ], "weight": 2, "pin_cites": [ { "page": "577-78" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/146/0567-01" ] }, { "cite": "482 N.E.2d 355", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "356" } ], "opinion_index": 0 }, { "cite": "136 Ill. App. 3d 123", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3564427 ], "weight": 2, "pin_cites": [ { "page": "125" }, { "page": "124-25" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/136/0123-01" ] }, { "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 ], "pin_cites": [ { "page": "715-16" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/132/0713-01" ] }, { "cite": "466 U.S. 668", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6204802 ], "weight": 15, "pin_cites": [ { "page": "687" }, { "page": "693" }, { "page": "2064" }, { "page": "694" }, { "page": "698" }, { "page": "2068" }, { "page": "689" }, { "page": "694" }, { "page": "2065-66" }, { "page": "697" }, { "page": "699" }, { "page": "2069-70" } ], "opinion_index": 0, "case_paths": [ "/us/466/0668-01" ] }, { "cite": "473 N.E.2d 1246", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "104 Ill. 2d 504", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3147214 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/ill-2d/104/0504-01" ] }, { "cite": "138 N.E. 857", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 0 }, { "cite": "307 Ill. 441", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5092796 ], "opinion_index": 0, "case_paths": [ "/ill/307/0441-01" ] }, { "cite": "221 N.E.2d 227", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "35 Ill. 2d 552", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5380069 ], "pin_cites": [ { "page": "556" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/35/0552-01" ] }, { "cite": "488 N.E.2d 277", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "139 Ill. App. 3d 791", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3567900 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/139/0791-01" ] } ], "analysis": { "cardinality": 723, "char_count": 16446, "ocr_confidence": 0.777, "pagerank": { "raw": 1.0258017682154497e-07, "percentile": 0.5466783970802931 }, "sha256": "17d0d0b13780ec6c016f8dddc14ebdf97a75b665dbbeea9d053590d5568d6075", "simhash": "1:bab65c927e917591", "word_count": 2642 }, "last_updated": "2023-07-14T16:17:24.109479+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. ANDREW O\u2019NEAL, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE SPITZ\ndelivered the opinion of the court:\nThis is an appeal from the trial court\u2019s dismissal of a post-conviction petition pursuant to the provisions of section 122 \u2014 2.1(a) of the Post-Conviction Hearing Act. (Ill. Rev. Stat. 1985, ch. 38, par. 122\u20142.1(a).) Defendant was convicted of the offenses of unlawful possession of cannabis (Ill. Rev. Stat. 1983, ch. 56\u00bd, par. 704(d)) and possession with intent to deliver (Ill. Rev. Stat. 1985, ch. 56\u00bd, par. 705(d)) on March 30, 1985, and was sentenced on April 11, 1985, to a term of 30 months of incarceration. An appeal followed in which he was represented by the same attorney, and this court affirmed his conviction. People v. O\u2019Neal (1985), 139 Ill. App. 3d 791, 488 N.E.2d 277.\nDefendant filed a petition for post-conviction relief on February 20, 1986. In his petition, defendant alleged that he was deprived of effective assistance of counsel because of a conflict of interest between himself and a codefendant, and because of incompetence of counsel. The court entered an order dismissing the post-conviction petition on March 27, without conducting a hearing, finding that the petition was patently without merit. (Ill. Rev. Stat. 1985, ch. 38, par. 122\u20142.1(a).) A motion to reconsider was denied on April 4, 1986. Defendant now appeals from the denial of his post-conviction petition.\nThe first argument raised by defendant on appeal is that the trial court erred by finding that his post-conviction petition was patently without merit, and by dismissing the petition without a hearing. Defendant argues that he raised two questions of fact in his post-conviction petition which were not patently without merit and should not have been determined without a hearing.\nThe first of these questions involved an alleged conflict of interest on the part of defendant\u2019s trial counsel, who represented both O\u2019Neal and a codefendant, Theresa Bryson. Defendants\u2019 counsel requested a severance and separate trials for his two clients, and this request was granted. Bryson did not testify at defendant\u2019s trial, and the charges that had been filed against her were subsequently dropped. Defendant now argues that the interests of Bryson were adverse to his own interest and that, because of this, his counsel did not effectively represent him. The standard followed by this court is that an actual existing conflict of interest in the defenses presented by codefendants must be established before there will be a finding that the joint representation denied effective assistance of counsel, and the evidence in the record must establish actual prejudice.\nAs the supreme court stated in People v. McCasle (1966), 35 Ill. 2d 552, 556, 221 N.E.2d 227, 230:\n\u201c[Tjhere is no showing that defendant was prejudiced by counsel\u2019s representation of both him and his co-defendant, or that a different result might have obtained had separate counsel been appointed, and we ought not disturb a judgment on the basis of conjectural or speculative conflicts between the interests of co-defendants which are envisioned for the first time on appeal. (See People v. Courtney [1923], 307 Ill. 441, [138 N.E. 857].\u201d)\nWe believe that defendant\u2019s contention that a conflict of interest on the part of his trial counsel led to ineffective assistance of counsel amounts to mere speculation, that no actual conflict was established, and that the circuit court correctly ruled that this contention was patently without merit.\nDefendant also argues that he raised a question of fact regarding incompetence of counsel in his post-conviction petition which was not patently without merit and should not have been resolved without a hearing. Defendant bases his claim of incompetence of counsel upon the manner in which his counsel responded or failed to respond to two improper remarks made by the prosecution. During voir dire, the prosecutor stated:\n\u201cAs I was saying, this case involves the drugs cannabis, heroin, and a drug called pentazocine. It involves possession of those drugs and possession with the intent to deliver or a drug dealer.\u201d\nDefense counsel did not immediately respond to this statement; however, following the selection of the jury, defense counsel moved for a mistrial, and his motion was denied. During closing argument, the prosecutor stated:\n\u201cHe is charged with unlawful possession of cannabis 30 to 500 grams with intent to deliver. What that means is intending to sell this item, a drug dealer.\u201d\nDefense counsel did not object or respond to this statement at trial, and did not mention this statement on appeal. In the direct appeal of his conviction, defendant argued that the trial court erred in not granting defendant\u2019s motion for a mistrial following the voir dire examination of the jury when the prosecutor referred to the defendant as a \u201cdrug dealer.\u201d In response to this argument, this court stated:\n\u201cThe prosecutor\u2019s statement could be taken as implying that the State would prove a series of drug transactions by the defendant. This was something that the State had not charged and was not going to be able to do. However, the prejudice was not great and any impropriety was waived by the failure of the defense to promptly request relief.\u201d\nDefendant now argues that the failure of his trial counsel to properly raise the issue of improper prosecutorial remarks in the trial court, and the failure of trial counsel to preserve these issues and raise them on appeal, constituted incompetence of counsel.\nIn People v. Albanese (1984), 104 Ill. 2d 504, 473 N.E.2d 1246, the Illinois Supreme Court discussed and applied the standard for reviewing ineffective assistance of counsel claims set forth by the United States Supreme Court in Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052. In Strickland, the United States Supreme Court adopted a standard for reviewing ineffective-assistance-of-counsel claims, stating:\n\u201cA convicted defendant\u2019s claim that counsel\u2019s assistance was so defective as to require reversal of a conviction *** has two components. First, the defendant must show that counsel\u2019s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the \u201ccounsel\u201d guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel\u2019s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction *** resulted from a breakdown in the adversary process that renders the result unreliable.\u201d (466 U.S. 668, 687, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064.)\nThe United States Supreme Court also noted:\n\u201cThe defendant must show that there is a reasonable probability that, but for counsel\u2019s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.\u201d (466 U.S. 668, 694, 80 L. Ed. 2d 674, 698, 104 S. Ct. 2052, 2068.)\nFurthermore, the United States Supreme Court stated:\n\u201cJudicial scrutiny of counsel\u2019s performance must be highly deferential. It is all too tempting for a defendant to secondguess [sic] counsel\u2019s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel\u2019s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable, [Citation.] A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel\u2019s challenged conduct, and to evaluate the conduct from counsel\u2019s perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel\u2019s conduct falls within the wide range of reasonable professional assistance; ***.\u201d 466 U.S. 668, 689, 80 L. Ed. 2d 674, 694, 104 S. Ct. 2052, 2065-66.\nThe United States Supreme Court further noted:\n\u201c[A] court need not determine whether counsel\u2019s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. *** If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which'we expect will often be so, that course should be followed.\u201d (466 U.S. 668, 697, 80 L. Ed. 2d 674, 699, 104 S. Ct. 2052, 2069-70.)\nThis court has already held that defendant was proved guilty beyond a reasonable doubt of the offenses of unlawful possession of cannabis and unlawful possession of cannabis with intent to deliver. The evidence of defendant\u2019s guilt was very strong, and we believe that the outcome of defendant\u2019s trial was not affected by defense counsel\u2019s failure to respond to the prosecution\u2019s improper remarks. Consequently, we conclude that defendant has failed to show that he was prejudiced in any way by the manner in which his defense was conducted, or that there was a reasonable probability that the result of the proceeding would have been different, and the circuit court was correct in ruling that defendant\u2019s claim of ineffective assistance of counsel was patently without merit.\nDefendant also argues that section 122 \u2014 2.1 of the Post-Conviction Hearing Act (Ill. Rev. Stat. 1985, ch. 38, par. 122\u20142.1) is unconstitutional as it applies to him in this case because it violates the separation of powers provision of the Illinois Constitution (Ill. Const. 1970, art. II, sec. 1), which provides:\n\u201cThe legislative, executive and judicial branches are separate. No branch shall exercise powers properly belonging to another.\u201d\nDefendant argues that pursuant to section 122 \u2014 2.1 of the Post-Conviction Hearing Act, the trial judge assumes an advocate role which is \u201ctraditionally and constitutionally assigned to the State\u2019s Attorney,\u201d who is a part of the executive branch of State government. We believe that this argument is absolutely without merit. The trial judge does not serve as an advocate of any one position; rather, his function is merely to screen out those cases which are patently without merit at an early stage in the proceedings, thereby conserving valuable time and resources of the court and the people and agencies who are involved in these cases. The trial judge performed a purely judicial function in determining that defendant\u2019s post-conviction petition was patently without merit, and we fail to see any infringement upon the powers and duties of the executive branch (i.e., State\u2019s Attorney) in this case. Furthermore, we do not believe that defendant is in any way prejudiced by the fact that the State\u2019s Attorney is not involved in the post-conviction proceedings prior to the issuance of the court\u2019s order pursuant to section 122 \u2014 2.1 of the Post-Conviction Hearing Act. It appears to us that any involvement on the part of the State\u2019s Attorney would make a defendant's post-conviction challenge more difficult.\nAdditionally, defendant has failed to show how the provision which directs the trial court to decide if a defendant\u2019s petition is patently without merit without conducting a hearing violates the separation of powers provision of the Illinois Constitution. (Ill. Const. 1970, art. II, sec. 1.) Consequently, we hold that defendant\u2019s constitutional challenge to section 122 \u2014 2.1 of the Post-Conviction Hearing Act is without merit. See People v. Baugh (1985), 132 Ill. App. 3d 713, 715-16, 477 N.E.2d 724-25 (wherein the defendant challenged the constitutionality of section 122 \u2014 2.1 of the Post-Conviction Hearing Act by arguing a violation of the doctrine of separation of powers because of an alleged conflict between that section and Supreme Court Rule 651(c) (87 Ill. 2d R. 651(c)), and this court upheld the constitutionality of that section).\nThe final issue raised by defendant is whether the failure of the trial court to rule on his post-conviction petition within 30 days pursuant to section 122 \u2014 2.1(a) of the Post-Conviction Hearing Act (Ill. Rev. Stat. 1985, ch. 38, par. 122\u20142.1(a)) renders the court\u2019s dismissal order void. The State contends that section 122 \u2014 2.1(a) is directory rather than mandatory in nature, and therefore the trial court has jurisdiction to consider the lack of merit of a petition more than 30 days after the petition is filed and docketed. Section 122 \u2014 2.1(a) of the Post-Conviction Hearing Act provides:\n\u201c(a) Within 30 days after the filing and docketing of each petition, 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.\u201d Ill. Rev. Stat. 1985, ch. 38, par. 122\u20142.1(a).\nThe issue of whether the 30-day provision contained in section 122 \u2014 2.1(a) of the Post-Conviction Hearing Act is directory or mandatory has been addressed in three recent appellate court opinions. In People v. Churchill (1985), 136 Ill. App. 3d 123, 125, 482 N.E.2d 355, 356, the Third District held that the provision is directory, stating:\n\u201cWhile the better practice is to follow the time limits allowed, and while we do not approve of the procedural delay, we nevertheless find it was not prejudicial in this case and does not constitute reversible error. Further, the statute does not provide any sanctions for noncompliance when no prejudice is found. Where no grounds for relief are set forth in the post-conviction petition, as in the instant case, no possible useful purpose could be furthered by holding that an evidentiary hearing should be held.\u201d\nIn People v. Wilson (1986), 146 Ill. App. 3d 567, the fourth division of the First District also held that the 30-day provision was directory, stating:\n\u201cIn our view the purpose of the requirement that the trial court consider the frivolity of a post-conviction petition within 30 days of the petition\u2019s filing and docketing is to serve as a guide to trial courts and to secure the orderly, systematic, and expeditious disposition of post-conviction proceedings. The section contains no language prohibiting consideration after 30 days, nor would a defendant\u2019s rights necessarily be injuriously affected by a failure to act within the 30-day time period. As a result we conclude that the section suggests, rather than mandates, that the court consider the frivolity and merit of a post-conviction petition within 30 days. (People v. Churchill (1985), 136 Ill. App. 3d 123, 124-25, 482 N.E.2d 355.) We therefore hold that the 30-day time period stated in section 122 \u2014 2.1(a) is directory rather than mandatory, and that the trial court\u2019s disposition of the petitioner\u2019s pleading here more than 30 days following the docketing was not void.\u201d (146 Ill. App. 3d 567, 577-78.)\n(Cf. People v. Brown (1986), 142 Ill. App. 3d 139, 491 N.E.2d 486 (wherein the Fifth District held that the 30-day provision was mandatory).) We agree with the reasoning set forth in Churchill and Wilson, and conclude that the 30-day provision is directory rather than mandatory. Therefore, we choose to adopt the position expressed in Churchill and Wilson, and decline to adopt the position expressed in Brown. Consequently, we hold that defendant\u2019s contention that the circuit court\u2019s dismissal of defendant\u2019s petition was void for failure to comply with the 30-day provision contained in section 122 \u2014 2.1(a) of the Post-Conviction Hearing Act (Ill. Rev. Stat. 1985, ch. 38, par. 122\u20142.1(a)) is without merit.\nFor the reasons stated herein, the circuit court order dismissing defendant\u2019s post-conviction petition as being patently without merit is hereby affirmed.\nAffirmed.\nMcCULLOUGH, Ed., and WEBBER, J., concur.", "type": "majority", "author": "JUSTICE SPITZ" } ], "attorneys": [ "Jerry Finney, of Record, Finney & Jankowicz, of Decatur, for appellant.", "Jeffrey K. Davison, State\u2019s Attorney, of Decatur (Kenneth R. Boyle, Robert J. Biderman, and Linda Welge, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANDREW O\u2019NEAL, Defendant-Appellant.\nFourth District\nNo. 4\u201486\u20140242\nOpinion filed October 6, 1986.\nJerry Finney, of Record, Finney & Jankowicz, of Decatur, for appellant.\nJeffrey K. Davison, State\u2019s Attorney, of Decatur (Kenneth R. Boyle, Robert J. Biderman, and Linda Welge, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "0087-01", "first_page_order": 109, "last_page_order": 116 }