{ "id": 3589052, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LAMONT SMITH, Defendant-Appellant", "name_abbreviation": "People v. Smith", "decision_date": "1988-11-04", "docket_number": "No. 86\u20140916", "first_page": "132", "last_page": "141", "citations": [ { "type": "official", "cite": "176 Ill. App. 3d 132" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "393 N.E.2d 563", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "74 Ill. App. 3d 893", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3268300 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/74/0893-01" ] }, { "cite": "444 N.E.2d 753", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "756" } ], "opinion_index": 0 }, { "cite": "111 Ill. App. 3d 711", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5438861 ], "weight": 2, "pin_cites": [ { "page": "716" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/111/0711-01" ] }, { "cite": "461 N.E.2d 393", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "397" } ], "opinion_index": 0 }, { "cite": "101 Ill. 2d 104", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3160843 ], "weight": 2, "pin_cites": [ { "page": "112-13" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/101/0104-01" ] }, { "cite": "520 N.E .2d 617", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "pin_cites": [ { "page": "622", "parenthetical": "Clark, C.J., specially concurring" }, { "page": "620" } ], "opinion_index": 0 }, { "cite": "121 Ill. 2d 36", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3201362 ], "weight": 3, "pin_cites": [ { "page": "46" }, { "page": "43" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/121/0036-01" ] }, { "cite": "262 N.E.2d 923", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "46 Ill. 2d 75", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2900497 ], "opinion_index": 0, "case_paths": [ "/ill-2d/46/0075-01" ] }, { "cite": "230 N.E.2d 169", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1970, "opinion_index": 0 }, { "cite": "37 Ill. 2d 622", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2865991 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/ill-2d/37/0622-01" ] }, { "cite": "338 N.E.2d 161", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "61 Ill. 2d 590", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2965320 ], "opinion_index": 0, "case_paths": [ "/ill-2d/61/0590-01" ] }, { "cite": "328 N.E.2d 555", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "60 Ill. 2d 579", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5415693 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/ill-2d/60/0579-01" ] }, { "cite": "235 N.E.2d 562", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "39 Ill. 2d 307", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2856221 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/ill-2d/39/0307-01" ] }, { "cite": "289 N.E.2d 460", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "8 Ill. App. 3d 162", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2765177 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/8/0162-01" ] }, { "cite": "72 N.E.2d 208", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "396 Ill. 499", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2466443 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/ill/396/0499-01" ] }, { "cite": "84 N.E.2d 418", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1947, "opinion_index": 0 }, { "cite": "402 Ill. 478", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2617751 ], "year": 1947, "opinion_index": 0, "case_paths": [ "/ill/402/0478-01" ] }, { "cite": "97 N.E.2d 841", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1949, "opinion_index": 0 }, { "cite": "408 Ill. 582", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2642566 ], "year": 1949, "opinion_index": 0, "case_paths": [ "/ill/408/0582-01" ] }, { "cite": "201 N.E.2d 394", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1951, "opinion_index": 0 }, { "cite": "31 Ill. 2d 262", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2831403 ], "year": 1951, "opinion_index": 0, "case_paths": [ "/ill-2d/31/0262-01" ] }, { "cite": "404 N.E.2d 435", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "83 Ill. App. 3d 515", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5554462 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/83/0515-01" ] }, { "cite": "384 N.E.2d 568", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 4, "pin_cites": [ { "page": "571" }, { "page": "571-72" }, { "page": "572" } ], "opinion_index": 0 }, { "cite": "66 Ill. App. 3d 986", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3322094 ], "weight": 4, "pin_cites": [ { "page": "989" }, { "page": "989-91" }, { "page": "990-91" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/66/0986-01" ] } ], "analysis": { "cardinality": 895, "char_count": 20064, "ocr_confidence": 0.766, "pagerank": { "raw": 7.193448449827994e-08, "percentile": 0.4303420778585933 }, "sha256": "555f52600f3225b7b9a784d5f5e8bcbb4e549e1397220ef9b6bfb8d2933412e1", "simhash": "1:ebf035c03f748ed5", "word_count": 3093 }, "last_updated": "2023-07-14T15:43:30.106689+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. LAMONT SMITH, Defendant-Appellant." ], "opinions": [ { "text": "PRESIDING JUSTICE LORENZ\ndelivered the opinion of the court:\nThis is an appeal from denial of a petition for relief pursuant to section 2 \u2014 1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2\u20141401) following criminal convictions.\nWe affirm.\nDefendant, Lamont Smith, was convicted of rape, armed robbery, and home invasion on March 14, 1984, after a bench trial before the Honorable Kenneth Gillis. In that proceeding, defendant was represented by Russell Bom, an assistant Cook County public defender. Subsequently, in April 1985, upon the State\u2019s confession of error, this court entered an order vacating one of defendant\u2019s two home invasion counts and remanded, for resentencing, the remaining home invasion count. Defendant\u2019s convictions and sentences for rape and armed robbery were not disturbed.\nOn November 27, 1985, defendant, pro se, filed a \u201cPetition For A Writ Or [sic] Error Coram Nobis\u201d in the circuit court seeking to vacate his sentences and for grant of a new trial. That petition was superseded by one seeking relief, pursuant to section 2 \u2014 1401 of the Code of Civil Procedure, filed on defendant\u2019s behalf by Ronald P. Katz, another assistant in the Cook County public defender\u2019s office.\nThe petition asserted two grounds for relief. First, the petition stated defendant was unfit to stand trial because defendant suffered from schizophrenia and therefore could not understand the proceedings against him or cooperate with counsel. As support, the petition cited two attached exhibits consisting of reports of two psychiatrists. Those reports concluded that defendant was unfit by reason of his illness to stand trial in 1977 for an unrelated offense. As further support, defendant cited numerous other psychiatric evaluations made shortly after his sentencing hearing on April 12, 1984, in the criminal proceeding underlying this appeal. Second, the petition argued defendant was afforded ineffective assistance of trial counsel because Assistant Public Defender Bom failed to inquire as to defendant\u2019s past psychiatric history and did not request a psychiatric evaluation.\nAn evidentiary hearing on defendant\u2019s petition was begun on March 26, 1986, before the Honorable Thomas R. Fitzgerald. Assistant Public Defender Katz represented defendant at that hearing.\nTwo witnesses were called to testify for defendant. Robert A. Reifman, a psychiatrist and director of the psychiatric institute of the circuit court of Cook County, a qualified expert, described the nature of schizophrenia and testified to his review of numerous psychiatric reports, including one of his own, prepared in connection with defendant\u2019s prior criminal proceeding.\nOn cross-examination, Reifman stated that on March 15, 1978, he had found defendant, with medication, was mentally fit to stand trial. Reifman stated that he had examined defendant on February 5, 1986, and, based on that examination, as well as upon his review of the earlier reports and examinations, concluded that defendant was \u201cprobably fit for trial\u201d in the underlying action.\nIn connection with Reifman\u2019s testimony, the trial judge admitted into evidence various behavior assessments and psychiatric reports concerning defendant. Two of the documents related to the 1977 proceeding against defendant. Fourteen of the documents related to reports dated between May 5,1984, and March 15,1985.\nDefendant\u2019s mother testified as to her observation of defendant\u2019s aberrant behavior during a visit with him at the Illinois Psychiatric Hospital in 1977, just prior to his arrest in the instant action, and during a visit with .defendant in jail prior to trial.\nThe parties stipulated that on April 26, 1978, defendant had been adjudicated fit to stand trial in the earlier, unrelated, proceeding.\nAssistant Public Defender Bom, defendant\u2019s trial counsel, also testified for the State as to his opinion, based on pretrial conferences with defendant, defendant\u2019s participation in formulation of a trial defense, and defendant\u2019s conduct at trial, including defendant\u2019s testimony, as to whether defendant understood the nature of the charges against him. The circumstances and nature of Bom\u2019s testimony will be more fully discussed below.\nAfter considering the above evidence, defendant\u2019s petition was denied. This appeal followed.\nOpinion\nDefendant cites three points of error in the ruling below. Defendant contends the trial court improperly refused to consider, in the section 2 \u2014 1401 proceeding, whether defendant was afforded effective trial counsel because of Assistant Public Defender Bom\u2019s failure to inquire as to, and present to the court, defendant\u2019s past psychiatric condition. Defendant also contends that because Assistant Public Defender Katz, defendant\u2019s counsel at the section 2 \u2014 1401 proceeding, was a member of the same office as Assistant Public Defender Bom, defendant\u2019s trial counsel, conflicts of interest precluded Katz from properly representing defendant. Finally, defendant argues that, because defendant had successfully petitioned for substitution of Judge Fitzgerald prior to the original trial, it was error for Judge Fitzgerald to preside over defendant\u2019s subsequent section 2 \u2014 1401 petition.\nI\nIn the hearing on defendant\u2019s section 2 \u2014 1401 petition below, the trial judge permitted testimony only as to establish whether defendant was fit to stand trial and precluded testimony pertaining to the ineffective assistance of trial counsel. The record shows that, during cross-examination of Assistant Public Defender Bom, the trial judge specifically admonished Assistant Public Defender Katz:\n\u201cThe issue, Mr. Katz, is it not, is whether or not the man was fit for trial in 1985, not whether or not the lawyer was competent.\nThis is a \u2014 its [sic] not a P.C. [hearing pursuant to the Post-Conviction Hearing Act (Ill. Rev. Stat. 1985, ch. 38, pars. 122-1 through 122-8)].\u201d\nDefendant contends that determination constitutes reversible error as judicial economy required that the court consider whether defendant received ineffective assistance of trial counsel along with the issue of whether defendant was fit to stand trial. Defendant urges such flexibility in section 2 \u2014 1401 proceedings is supported by the decision in People v. McManus (1978), 66 Ill. App. 3d 986, 384 N.E.2d 568.\nWe disagree. Generally, section 2 \u2014 1401, formerly section 72 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 72), provides a modem substitute for a writ of error coram nobis permitting vacation of judgments obtained by duress or fraud, or judgments entered because of a party\u2019s excusable mistake or ignorance, where, without the party\u2019s own negligence, the party has been deprived of a defense which, if known to the court, would have prevented judgment. (In re Charles S. (1980), 83 Ill. App. 3d 515, 404 N.E.2d 435.) However, the Illinois Supreme Court has long held such proceedings do not provide the appropriate forum for which a defendant may raise contentions as to competency of counsel. (People v. Anderson (1964), 31 Ill. 2d 262, 201 N.E.2d 394; Putnam v. People (1951), 408 Ill. 582, 97 N.E.2d 841; Hall v. People (1949), 402 Ill. 478, 84 N.E.2d 418; People v. Gleitsman (1947), 396 Ill. 499, 72 N.E.2d 208.) Such contention is properly made, instead, pursuant to the Post-Conviction Hearing Act. See, e.g., People v. Savage (1972), 8 Ill. App. 3d 162, 289 N.E.2d 460.\nDefendant here presents no compelling reasons for departure from the above procedure, and we can find no basis in McManus for the argument that that case allows relaxation of the above general rule in factual situations other than that specifically before the court there.\nIn McManus, the defendant\u2019s direct appeal following conviction for delivery of a controlled substance was dismissed for failure to timely file the trial record when neither defendant nor counsel appeared at hearing on the State\u2019s motion. Defendant subsequently filed a verified section 72 petition to vacate the dismissal stating that defendant had contacted counsel numerous times and had relied on counsel\u2019s assurance that the appeal was being properly processed. The petition also stated defendant had never resided at the address to which notice of the hearing had been sent. The State successfully moved to dismiss the petition. Defendant appealed. Acknowledging that section 72 may not \u201cspecifically be intended\u201d to relieve a litigant of incompetence of counsel, as the Post-Conviction Hearing Act is intended to provide such relief (McManus, 66 Ill. App. 3d at 989, 384 N.E.2d at 571), the court nevertheless vacated the dismissal of defendant\u2019s petition. The court explicitly based its conclusion on supplementary considerations of three other supreme court decisions in which defendants\u2019 direct appeals were dismissed for failure of counsel to timely file briefs. (McManus, 66 Ill. App. 3d at 989-91, 384 N.E.2d at 571-72, citing People v. Brown (1968), 39 Ill. 2d 307, 235 N.E.2d 562; People v. Aliwoli (1975), 60 Ill. 2d 579, 328 N.E.2d 555; People v. Jacobs (1975), 61 Ill. 2d 590, 338 N.E.2d 161.) The court reasoned that, procedurally, dismissal of the section 72 petition in favor of requiring defendant to file a post-conviction petition in the circuit court would not only cause delay, but would permit defendant only an inquiry of limited scope on subsequent appeal from that ruling, thus depriving defendant of his constitutional right to a direct appeal. McManus, 66 Ill. App. 3d at 990-91, 384 N.E.2d at 572.\nThe considerations supporting the holding in McMamis and cases cited therein are not present in the matter before us. Defendant here was never denied the opportunity to perfect a direct appeal from his conviction. It does not follow that a determination that the trial court did not err in refusing to consider the incompetency of counsel issue in the section 2 \u2014 1401 hearing below would now jeopardize defendant\u2019s right to a direct appeal. Further, while we acknowledge the merits of promoting judicial economy, we must decline to legitimize use of that consideration as means to circumvent procedural mechanisms established by statute. We conclude that it was not error for the trial judge to refuse to consider, in the section 2 \u2014 1401 hearing, the issue of the ineffectiveness of defendant\u2019s trial counsel.\nII\nIn the proceeding below, the State called Assistant Public Defender Born to testify as to his observations concerning defendant\u2019s fitness to stand trial. On direct examination, Born testified that he discussed defendant\u2019s case with defendant several times prior to trial and never noticed defendant having problems communicating. Born stated that, in fact, defendant had requested that a particular kind of blood test be performed in connection with the defense against the rape charge. Born testified defendant understood how that test worked. Bom stated that defendant understood the nature of the charges against him and questions put to him at trial.\nBom was questioned on cross-examination by Assistant Public Defender Katz. Bom stated that his conversations with defendant in the lockup were extensive. However, Bom admitted that he did not have an opportunity to observe defendant outside of those meetings. Born also admitted that defendant was a \u201cnervous kind of person\u201d and talked fast in pressured speech. Bom further admitted that he had no way of knowing whether the suggestion by defendant regarding the blood test was defendant\u2019s own idea.\nOn appeal, defendant contends dual conflicts of interest were presented by the above and therefore should have precluded the public defender\u2019s office from representing defendant in the section 2\u2014 1401 proceeding. First, defendant argues that a conflict arises whenever a member of the public defender\u2019s office contends another member of the office provided ineffective counsel at trial, and it was therefore improper for Assistant Public Defender Katz to represent defendant at the section 2 \u2014 1401 proceeding. Second, defendant argues an equal conflict was present in the instant matter because Assistant Public Defender Katz had to cross-examine Assistant Public Defender Bom, a fellow member of his office, in an attempt to discredit his testimony relating to defendant\u2019s fitness to stand trial. As support for both assertions, defendant relies on People v. Smith (1967), 37 Ill. 2d 622, 230 N.E.2d 169, People v. Terry (1970), 46 Ill. 2d 75, 262 N.E.2d 923, and subsequent cases decided in conformity therewith.\nThe Illinois Supreme Court, however, has overruled Smith and Terry, rejecting application of a per se rule establishing a conflict of interest whenever one public defender asserts ineffective assistance of another public defender, favoring, instead, a case-by-case inquiry to determine whether any circumstances peculiar to the case indicate presence of an actual conflict of interest. (People v. Banks (1987), 121 Ill. 2d 36, 520 N.E .2d 617.) As a result, the mere likelihood of a conflict is not determinative; the defendant must set forth in his petition sufficient facts to demonstrate the existence of an actual conflict. (Banks, 121 Ill. 2d at 46, 520 N.E .2d at 622 (Clark, C.J., specially concurring).) The adoption of such an approach, the court reasoned, is necessary because a per se disqualification is based on the invalid presumption that public defenders are unable to subordinate office allegiances to the foremost obligation owed to their clients. Banks, 121 Ill. 2d at 43, 520 N.E .2d at 620.\nFollowing Banks, we disagree with defendant\u2019s first contention that a conflict arose in the instant matter simply because defendant was represented at the section 2 \u2014 1401 proceeding by Assistant Public Defendant Katz, a member of the same public defender\u2019s office as defendant\u2019s trial counsel. However, in determining whether the circumstances here indicate an actual conflict, a more difficult question is presented by defendant\u2019s second assertion because we must consider that Assistant Public Defender Katz had to attempt to discredit a fellow member of his office during live cross-examination.\nIn support of the argument that an actual conflict existed based on that cross-examination, defendant directs us to the decision in People v. Washington (1984), 101 Ill. 2d 104, 461 N.E.2d 393. In Washington, the defendant was indicted in connection with a murder in Chicago Heights, Illinois. The defendant filed pretrial motions, claiming his arrest in Chicago Heights was without probable cause and that lineup identifications of defendant should be suppressed. The defendant was represented by counsel who also served as the city attorney for Chicago Heights on a part-time basis. During the hearing, the State called a Chicago Heights police officer to establish that probable cause existed to support defendant\u2019s arrest. Defendant\u2019s counsel cross-examined that officer and called another Chicago Heights police officer as a rebuttal witness. The trial court denied defendant\u2019s motions and defendant was ultimately convicted. On appeal, the appellate court reversed defendant\u2019s conviction, concluding that a conflict of interest existed precluding effective assistance of counsel because defendant\u2019s attorney also served as a Chicago Heights prosecutor. (People v. Washington (1982), 111 Ill. App. 3d 711, 444 N.E.2d 753.) The appellate court reasoned that \u201cthe nature and duties of a public prosecutorial position are inherently incompatible with those of criminal defense when the employer-municipality is involved in the case in any significant way.\u201d' (Washington, 111 Ill. App. 3d at 716, 444 N.E.2d at 756.) In affirming defendant\u2019s reversal, the Illinois Supreme Court approvingly quoted the appellate court\u2019s adopted rationale:\n\u201c[W]hen a city prosecutor acts as defense counsel in a case where his own city police officers are involved, a struggle inevitably arises between counsel\u2019s obligation to represent his client competently and zealously, and \u2018a public prosecutor\u2019s natural inclination not to anger the very individuals whose assistance he relies upon in carrying out his prosecutorial responsibilities.\u2019 \u201d People v. Washington (1981), 101 Ill. 2d 104, 112-13, 461 N.E.2d 393, 397.\nDefendant\u2019s reliance on Washington here is misplaced. The dilemma inherent when a prosecutor must challenge, on cross-examination, his own municipality\u2019s police officers on the legality of an arrest is materially distinguishable from a situation in which one public defender must cross-examine a fellow member of his office in attempting to establish that his client was not fit to stand trial. The public defender in such situations is not in a position, as is the prosecutor, of discrediting an individual\u2019s veracity and credibility for which he must vouch for on other occasions in the performance of official sworn duties. The public defender, rather than faced with such conflicting duties, owes only one true allegiance: to the defendant. Therefore, absent some indication, as must be set forth in the petition, in the form of the completeness and vigorousness of the cross-examination itself, that an actual conflict impinged zealous representation of defendant, we cannot conclude that a disqualifying conflict existed.\nReview of the transcript of Assistant Public Defender Katz\u2019 cross-examination of Assistant Public Defender Bom reveals no indication that Katz was in any way influenced in his questioning of Bom. Instead, the record shows that Katz attempted to discredit Born\u2019s testimony as to each of the points the State sought to establish through direct testimony. Katz challenged Born as to the limited nature of Bom\u2019s conversations with defendant prior to trial. Katz also challenged Born\u2019s assertion that defendant\u2019s suggestion of the blood test was indicative of defendant\u2019s mental faculties by forcing Born to admit the possibility that the suggestion was not originally conceived by defendant. Finally, Katz elicited from Born the observation that defendant was a nervous person. Based on our review of the above, we are able to find no support for defendant\u2019s argument that an actual conflict existed below.\nIII\nPrior to defendant\u2019s trial in 1984, defendant successfully moved for the substitution of Judge Fitzgerald pursuant to section 114 \u2014 5 of the Code of Criminal Procedure of 1963 permitting a single automatic substitution of a judge based on prejudice. (Ill. Rev. Stat. 1985, ch. 38, par. 114\u20145.) Defendant\u2019s case was transferred to Judge Gillis, who heard the evidence and delivered the verdict. However, when defendant subsequently petitioned for post-judgment relief, defendant also moved to have Judge Gillis recuse himself from that proceeding because of the possibility that defendant might call Judge Gillis as a witness to testify as to defendant\u2019s competency at the time of trial. Judge Gillis did so recuse himself. Defendant\u2019s section 2 \u2014 1401 petition was heard by Judge Fitzgerald.\nDefendant now asserts that Judge Fitzgerald should not have heard defendant\u2019s petition because defendant successfully substituted Judge Fitzgerald prior to trial.\nWe find no evidence in the record to indicate that defendant renewed the earlier pretrial motion or otherwise objected to having Judge -Fitzgerald preside over defendant\u2019s post-judgment hearing. We conclude that the failure to indicate objection evidences defendant\u2019s willingness to have Judge Fitzgerald preside over the post-judgment hearing and constitutes a waiver of that issue on review. See People v. Bach (1979), 74 Ill. App. 3d 893, 393 N.E.2d 563.\nAccordingly, the judgment of the circuit court of Cook County is affirmed.\nAffirmed.\nPINCHAM and MURRAY, JJ., concur.", "type": "majority", "author": "PRESIDING JUSTICE LORENZ" } ], "attorneys": [ "Steven Clark, of State Appellate Defender\u2019s Office, of Chicago, for appellant.", "Richard M. Daley, State\u2019s Attorney, of Chicago (Kenneth T. McCurry, Kim A. Novi, and Susan Salita, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LAMONT SMITH, Defendant-Appellant.\nFirst District (5th Division)\nNo. 86\u20140916\nOpinion filed November 4, 1988.\nSteven Clark, of State Appellate Defender\u2019s Office, of Chicago, for appellant.\nRichard M. Daley, State\u2019s Attorney, of Chicago (Kenneth T. McCurry, Kim A. Novi, and Susan Salita, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0132-01", "first_page_order": 154, "last_page_order": 163 }