{
  "id": 3648790,
  "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Respondent-Appellee, v. NICKY JOHN CLUCAS, Petitioner-Appellant",
  "name_abbreviation": "People v. Clucas",
  "decision_date": "1987-07-29",
  "docket_number": "No. 5\u201486\u20140493",
  "first_page": "129",
  "last_page": "132",
  "citations": [
    {
      "type": "official",
      "cite": "160 Ill. App. 3d 129"
    }
  ],
  "court": {
    "name_abbreviation": "Ill. App. Ct.",
    "id": 8837,
    "name": "Illinois Appellate Court"
  },
  "jurisdiction": {
    "id": 29,
    "name_long": "Illinois",
    "name": "Ill."
  },
  "cites_to": [
    {
      "cite": "153 Ill. App. 3d 1050",
      "category": "reporters:state",
      "reporter": "Ill. App. 3d",
      "case_ids": [
        3608310
      ],
      "opinion_index": 0,
      "case_paths": [
        "/ill-app-3d/153/1050-01"
      ]
    },
    {
      "cite": "499 N.E. 2d 710",
      "category": "reporters:state_regional",
      "reporter": "N.E.2d",
      "opinion_index": 0
    },
    {
      "cite": "148 Ill. App. 3d 723",
      "category": "reporters:state",
      "reporter": "Ill. App. 3d",
      "case_ids": [
        3643711
      ],
      "opinion_index": 0,
      "case_paths": [
        "/ill-app-3d/148/0723-01"
      ]
    },
    {
      "cite": "495 N.E. 2d 501",
      "category": "reporters:state_regional",
      "reporter": "N.E.2d",
      "year": 1986,
      "opinion_index": 0
    },
    {
      "cite": "113 Ill. 2d 36",
      "category": "reporters:state",
      "reporter": "Ill. 2d",
      "case_ids": [
        3173628
      ],
      "year": 1986,
      "opinion_index": 0,
      "case_paths": [
        "/ill-2d/113/0036-01"
      ]
    },
    {
      "cite": "272 N.E.2d 669",
      "category": "reporters:state_regional",
      "reporter": "N.E.2d",
      "opinion_index": 0
    },
    {
      "cite": "1 Ill. App. 3d 87",
      "category": "reporters:state",
      "reporter": "Ill. App. 3d",
      "case_ids": [
        5315032
      ],
      "opinion_index": 0,
      "case_paths": [
        "/ill-app-3d/1/0087-01"
      ]
    },
    {
      "cite": "107 Ill. App. 3d 1173",
      "category": "reporters:state",
      "reporter": "Ill. App. 3d",
      "opinion_index": 0
    }
  ],
  "analysis": {
    "cardinality": 342,
    "char_count": 5679,
    "ocr_confidence": 0.782,
    "pagerank": {
      "raw": 4.947487136851577e-08,
      "percentile": 0.3110795262580946
    },
    "sha256": "8ee32b42944bd52871783d61858b57d64f373a2a00f9bda0e10358d08a6c44e5",
    "simhash": "1:788bcd5e3fb6bcf7",
    "word_count": 926
  },
  "last_updated": "2023-07-14T16:53:05.010141+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "THE PEOPLE OF THE STATE OF ILLINOIS, Respondent-Appellee, v. NICKY JOHN CLUCAS, Petitioner-Appellant."
    ],
    "opinions": [
      {
        "text": "JUSTICE WELCH\ndelivered the opinion of the court:\nThe petitioner, Nicky John Clucas, appeals, from the dismissal of his post-conviction petition pursuant to section. 122 \u2014 2.1 of the Post-Conviction Hearing Act (Ill. Rev. Stat. 1985, ch. 38, par. 122 \u2014 2.1). Petitioner contends that he is entitled to a new hearing, as the State\u2019s Attorney who appeared at the post-conviction hearing had previously represented petitioner on the offense which is the subject of that petition and that the trial court erred when a judge other than the one who entered the judgment of conviction presided at the post-conviction petition.\nOn July 7, 1980, petitioner pleaded guilty to murder, and on August 8, 1980, he was sentenced by the Honorable Joseph E Fribley to 32 years\u2019 imprisonment.. After his amended motion to withdraw his plea of guilty, which was filed pursuant to Supreme Court Rule 604(d) (87 Ill. 2d R. 604(d)), was denied, he appealed to this court. Petitioner\u2019s conviction and sentence were affirmed pursuant to Supreme Court Rule 23 (87 Ill. 2d R. 23). People v. Clucas (1982) 107 Ill. App. 3d 1173 (unpublished Rule 23 order).\nThe State\u2019s Attorney of Christian County, John Coady, had previously served as public defender and in that capacity had been appointed to represent petitioner and Paul Douglas Moon, petitioner\u2019s codefendant, on March 6, 1980. On March 10, 1980, Mr. Coady filed a motion to withdraw as counsel for Clucas on the basis that \u201cCounsel for the Defendants has determined that a potentially irreconcilable conflict of interest exists which may prevent him from giving effective assistance to both defendants.\u201d The motion was granted and other counsel was appointed to represent Clucas.\nOn March 5, 1986, petitioner filed his post-conviction petition. On April 4, 1986, a hearing was scheduled, and the court ordered that petitioner be brought from the Dixon Correctional Center for the hearing. The Honorable Mark Joy presided at the hearing. As the State had not filed a written answer to the petition, the court allowed the State to make an oral general denial. Petitioner then asked for the appointment of counsel. The State\u2019s Attorney started to refer to the right of counsel in a post-conviction proceeding when he asked to approach the bench. An off-the-record conference occurred after which the court stated the procedure for considering the petition. The court then found the petition to be patently without merit and stated the reasons for so finding. The court asked the State\u2019s Attorney if he was still contending that the petition was without merit, and Mr, Coady responded: \u201dYes, sir. I am full of argument but I won\u2019t.\u201d\nThe petitioner initially contends that the court\u2019s finding that the petition is without merit is improper where the finding was made in a hearing where the State\u2019s Attorney appeared and argued, petitioner was denied counsel, and the State\u2019s Attorney had previously been petitioner\u2019s appointed attorney. The State contends that there is no conflict of interest as Mr. Coady had not actively represented petitioner, or appeared in court on his behalf, and that the court could have determined that the petition was frivolous even had Mr. Coady not appeared for the State. The court finds that Mr. Coady had actively represented petitioner to the extent that he was able to conclude that a potential conflict of interest existed between petitioner, and Moon. We conclude that it was improper and a conflict of interest for Mr. Coady to appear for the State at the post-conviction hearing. (See People v. Curry (1971), 1 Ill. App. 3d 87, 272 N.E.2d 669.) Therefore, the judgment of the circuit court of Christian County is reversed, and the cause is remanded to that court to reconsider the post-conviction petition, and to take whatever steps it deems necessary to decide the case. This court is making no decision on the merits of the petition, as that is for the trial court to decide. If the State wishes to participate in the proceedings on remand, the court shall appoint a special prosecutor.\nPetitioner next contends that because section 122 \u2014 8 of the Post-Conviction Hearing Act (Ill. Rev. Stat. 1985, ch. 38, par. 122 \u2014 8) has been declared unconstitutional in People v. Joseph (1986), 113 Ill. 2d 36, 495 N.E. 2d 501, as a violation of the separation-of-powers doctrine, the trial court erred when it assigned a new judge to preside over petitioner\u2019s post-conviction petition. In People v. Farmer (1986), 148 Ill. App. 3d 723, 499 N.E. 2d 710, this issue was decided adversely to petitioner. Without further discussion, we believe the issue was properly decided in Farmer, and we follow that decision. (See People v. Peeples (1987), 153 Ill. App. 3d 1050.) However, in the case at bar, this court believes that Judge Joy is tainted by having presided over the post-conviction hearing; therefore, upon remand, a judge other than Judge Joy shall consider the post-conviction petition.\nFor the foregoing reasons, the judgment of the circuit court of' Christian County is reversed, and this cause is remanded to that court for further proceedings in conformity with this order.\nReversed and remanded with directions.\nEARNS, P.J., and EASSERMAN, J., concur.",
        "type": "majority",
        "author": "JUSTICE WELCH"
      }
    ],
    "attorneys": [
      "Daniel M. Kirwan and Edwin Anderson, both of State Appellate Defender\u2019s Office, of Mt. Vernon, for appellant.",
      "John P. Coady, State\u2019s Attorney, of Taylorville (Kenneth R. Boyle, Stephen E. Norris, and Kathy J. Geer, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People."
    ],
    "corrections": "",
    "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Respondent-Appellee, v. NICKY JOHN CLUCAS, Petitioner-Appellant.\nFifth District\nNo. 5\u201486\u20140493\nOpinion filed July 29, 1987.\nDaniel M. Kirwan and Edwin Anderson, both of State Appellate Defender\u2019s Office, of Mt. Vernon, for appellant.\nJohn P. Coady, State\u2019s Attorney, of Taylorville (Kenneth R. Boyle, Stephen E. Norris, and Kathy J. Geer, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People."
  },
  "file_name": "0129-01",
  "first_page_order": 151,
  "last_page_order": 154
}