{ "id": 2504501, "name": "The People of the State of Illinois, Plaintiff-Appellee, v. Willie Smith, Jr., Defendant-Appellant", "name_abbreviation": "People v. Smith", "decision_date": "1974-11-06", "docket_number": "No. 74-13", "first_page": "1019", "last_page": "1023", "citations": [ { "type": "official", "cite": "23 Ill. App. 3d 1019" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "242 N.E.2d 208", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "41 Ill.2d 177", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2853252 ], "opinion_index": 0, "case_paths": [ "/ill-2d/41/0177-01" ] }, { "cite": "62 S. Ct. 1595", "category": "reporters:federal", "reporter": "S. Ct.", "opinion_index": 0 }, { "cite": "316 U.S. 455", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 368158 ], "opinion_index": 0, "case_paths": [ "/us/316/0455-01" ] }, { "cite": "245 N.E.2d 461", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "42 Ill.2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2846427 ], "opinion_index": 0, "case_paths": [ "/ill-2d/42/0001-01" ] }, { "cite": "256 N.E.2d 455", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "44 Ill.2d 476", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2891275 ], "opinion_index": 0, "case_paths": [ "/ill-2d/44/0476-01" ] }, { "cite": "262 N.E.2d 901", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "46 Ill.2d 104", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2899604 ], "opinion_index": 0, "case_paths": [ "/ill-2d/46/0104-01" ] }, { "cite": "293 N.E.2d 728", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "9 Ill.App.3d 1028", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2852690 ], "pin_cites": [ { "page": "1030" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/9/1028-01" ] }, { "cite": "282 N.E.2d 185", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "4 Ill.App.3d 893", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2919398 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/4/0893-01" ] }, { "cite": "303 N.E.2d 32", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "14 Ill.App.3d 274", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2680805, 2686958 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/14/0274-02", "/ill-app-3d/14/0274-01" ] }, { "cite": "264 N.E.2d 174", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "47 Ill.2d 42", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2905635 ], "opinion_index": 0, "case_paths": [ "/ill-2d/47/0042-01" ] }, { "cite": "302 N.E.2d 718", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "14 Ill.App.3d 535", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2679899 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-app-3d/14/0535-01" ] }, { "cite": "235 N.E.2d 566", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "pin_cites": [ { "page": "569" }, { "page": "569" } ], "opinion_index": 0 }, { "cite": "39 Ill.2d 278", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2857541 ], "weight": 3, "pin_cites": [ { "page": "285" }, { "page": "285" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/39/0278-01" ] }, { "cite": "255 N.E.2d 456", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "44 Ill.2d 296", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2889221 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-2d/44/0296-01" ] }, { "cite": "283 N.E.2d 727", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "pin_cites": [ { "page": "730" }, { "page": "732" } ], "opinion_index": 0 }, { "cite": "5 Ill.App.3d 648", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2527632 ], "weight": 3, "pin_cites": [ { "page": "653" }, { "page": "655" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/5/0648-01" ] } ], "analysis": { "cardinality": 482, "char_count": 9564, "ocr_confidence": 0.743, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.08153158736281536 }, "sha256": "72e3c2425615d12f44417effcbb515a30ae8a877e5491f9fa291d71e46f9a3be", "simhash": "1:315d6ed695ef860e", "word_count": 1512 }, "last_updated": "2023-07-14T18:19:43.775116+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. Willie Smith, Jr., Defendant-Appellant." ], "opinions": [ { "text": "Mr. JUSTICE EBERSPACHER\ndelivered the opinion of the court:\nThis is an appeal by the petitioner, Willie Smith, Jr., from an order entered by the circuit court of Massac County denying his petition for post-conviction relief after holding an evidentiary hearing. The sole issue raised in this appeal is whether the petitioner received inadequate representation in the prosecution of his post-conviction petition.\nThe petitioner was convicted in 1969 of murder and attempted murder and was sentenced to consecutive terms of 60 to 100 years and 15 to 20 years. His conviction was affirmed by this court on direct appeal. (People v. Smith, 5 Ill.App.3d 648, 283 N.E.2d 727.) The evidence presented at the petitioner\u2019s trial is summarized in that opinion and need not be repeated here.\nIn the petitioner\u2019s pro se petition for post-conviction relief he alleged: (1) that he was denied a fair trial because of pretrial publicity, (2) that his appointed trial counsel was incompetent, .(3) that the State made several comments which were prejud;cial to him during its closing arguments, (4) that hearsay evidence was admitted at his trial, (5) that appointed appellate counsel was incompetent, and (6) that the grand jury selection was improper because no blacks were included. In support of petitioner\u2019s first allegation, adverse pretrial publicity, he filed a memorandum setting forth the factual basis, the greater part of which was contained in the record of the trial, and the authorities upon which he based this allegation. The petitioner also filed a motion for appointment of counsel. Counsel was appointed. At the evidentiary hearing the petitioner\u2019s appointed counsel added the following allegations to the petition: (7) that the trial court improperly allowed the jurors to remain in the court room during the voir dire of subsequent jurors, (8) that the petitioner\u2019s trial counsel\u2019s association with the State\u2019s Attorney\u2019s office prevented him from rendering effective assistance of counsel, and (9) that the in-court identification procedure was improperly suggestive.\nThe main thrust of the petitioner\u2019s argument in this appeal is that petitioner\u2019s appointed counsel failed to amend the pro se petition and set forth the allegations contained therein \u201cin appropriate legal form.\u201d As authority for this argument the petitioner cites three cases. (People v. Hawkins, 44 Ill.2d 296, 255 N.E.2d 456; People v. Slaughter, 39 Ill.2d 278, 235 N.E.2d 566; People v. Gonzales, 14 Ill.App.3d 535, 302 N.E.2d 718.) In People v. Gonzales, 14 Ill.App.3d 535, 302 N.E.2d 718, the First District Appellate Court, in an abstract opinion, held that the petitioner\u2019s appointed counsel was inadequate since he failed to amend the petitioner\u2019s pro se petition for post-conviction relief which was found to be \u201ctotally conclusional in nature.\u201d Unlike the instant case, such failure to amend resulted in the petition being dismissed without an evidentiary hearing and, hence, the petitioner was given no opportunity to present a factual basis for the conclusionary allegations contained in his petition. In People v. Slaughter, 39 Ill.2d 278, 285, 235 N.E.2d 566, 569, our supreme court after reviewing the origin of the present Post-Conviction Hearing Act, stated:\n\u201cTo the end that the complaints of a prisoner with respect to the validity of his conviction might be adequately presented, the statute contemplated that the attorney appointed to represent an indigent petitioner would consult with him either by mail or in person, ascertain his alleged grievances, examine the record of the proceedings at the trial and then amend the petition that had been filed pro se, so that it would adequately present the prisoner\u2019s constitutional contentions. The statute cannot perform its function unless the attorney appointed to represent an indigent petitioner ascertains the basis of his complaints, shapes those complaints into appropriate legal form and presents them to the court.\u201d\nThe Supreme Court then went on to hold that:\n\u201cThe record before us shows unmistakably that the defendant did not receive adequate representation with respect to his original petition and his motion to amend that petition. (39 Ill.2d 278, 285, 235 N.E.2d 566, 569.)\nIn People v. Hawkins, 44 Ill.2d 296, 255 N.E.2d 456, our supreme court held that a petitioner did not receive adequate representation of counsel on his post-conviction petition. The court based its holding on the following findings: (1) that the petitioner\u2019s pro se petition was apparently prepared \u201cby someone with a very meager knowledge of the law\u201d; (2) that the petitioner\u2019s court appointed counsel \u201cmade no attempt to amend this petition and, at the hearing on the motion to dismiss, merely recited the claims of constitutional error as set forth in tire pro se petition\u201d; and (3) that the statutory deficiencies were not corrected by appointed counsel. In both Slaughter and Hawkins the petitioner\u2019s unamended pro se petition for post-conviction relief was dismissed without an evidentiary hearing. And, from our reading of these cases, we cannot find any indication that the respective counsel either consulted with their client or reviewed the trial record.\nIn the instant case petitioner\u2019s appointed counsel consulted with the petitioner at Menard and in court (during a recess requested by petitioner\u2019s counsel for such purpose), reviewed the trial record, solicited suggestions from the defendant, and made what he believed to be appropriate amendments at the evidentiary hearing. Moreover, the petitioner did receive an opportunity to present evidence at an evidentiary hearing on his petition for post-conviction relief.\nPetitioners counsel is not required to amend the pro se petition where no possibility of successful amendment appears. (People v. Stovall, 47 Ill.2d 42, 264 N.E.2d 174; People v. White, 14 Ill.App.3d 274, 303 N.E.2d 32; People v. Burns, 4 Ill.App.3d 893, 282 N.E.2d 185.) As stated in People v. Wollenberg, 9 Ill.App.3d 1028, 1030, 293 N.E.2d 728, 731:\n\u201cThe question then arises: Amend it to say what? * * * Mr. Bassiouni was appointed as a lawyer, not as a conjurer, * # **.\u201d\nAs a general rule anything which was raised on direct appeal is res judicata and anything which could have been raised on direct appeal, but was not, is waived, except where fundamental fairness requires otherwise. (People v. French, 46 Ill.2d 104, 262 N.E.2d 901; People v. Derengowski, 44 Ill.2d 476, 256 N.E.2d 455; People v. Somerville, 42 Ill.2d 1, 245 N.E.2d 461.) On the petitioner\u2019s direct appeal he raised three issues, which included his contention:\n\u201cthat [he] was not afforded due process of law and a fair trial under the Constitution of the United States and of the State of Illinois.\u201d (People v. Smith, 5 Ill.App.3d 648, 653, 283 N.E.2d 727, 730.)\nAfter we determined that the petitioner\u2019s other contentions were without merit, we addressed the above contention in the following manner:\n\u201cFinally, the defendant asserts that the case should be reversed because he was denied a fair trial and due process of law. Upon a consideration of the complete record, we do not find any basis for this contention. (Betts v. Brady, 316 U.S. 455; [62 S. Ct. 1595]; People v. Speck, 41 Ill.2d 177, 242 N.E.2d 208.) The evidence to support the conviction is overwhelming. The conduct of the trial and the representation that the defendant had was of a high professional standard.\u201d (5 Ill.App.3d 648, 655; 283 N.E.2d 727, 732.) (Emphasis added.)\nIn view of our \u201cconsideration of the complete record\u201d on direct appeal all but two of the allegations presented in the petitioner\u2019s pro se petition were decided and are res judicata. The two allegations not decided because they were outside the record before us, (1) that petitioner was denied a fair trial because of pre-trial publicity, and (2) that the grand jury selection was improper because no blacks were included, were adequately presented at the petitioner\u2019s evidentiary hearing. Since an evi-dentiary hearing on post-conviction was held on these two issues, we need .not consider whether they were waived by not being raised on direct appeal.\nThe memorandum appended to petitioner\u2019s pro se petition adequately set forth the factual basis upon which he based his claim of adverse pre-trial publicity, and we cannot say that his appointed counsel was inadequate because he failed to supplement this allegation. With respect to petitioner\u2019s contention that the grand jury selection was improper because no blacks were included the trial court found that: \u201cEvidence indicates that black persons were on the Grand Jury. Allegations made in that paragraph simply do not appear to be true.\u201d Thus, neither of these allegations, which were not res judicata as a result of the direct appeal, were disposed of because counsel failed to set forth the allegations contained in petitioner\u2019s pro se petition in \u201cappropriate legal form,\u201d as alleged by petitioner.\nHaving found the petitioner\u2019s sole contention without merit we affirm the order entered by the circuit court of Massac County dismissing the petitioner\u2019s request for post-conviction relief after holding an evidentiary hearing.\nOrder affirmed.\nG. MORAN, P. J., and CARTER, J., concur.", "type": "majority", "author": "Mr. JUSTICE EBERSPACHER" } ], "attorneys": [ "Robert E. Farrell, of Mt. Vernon, and Brenda Richey, of Chicago, both of State Appellate Defender\u2019s Office, for appellant.", "Guy M. Lahr, III, State\u2019s Attorney, of Metropolis, for the People." ], "corrections": "", "head_matter": "The People of the State of Illinois, Plaintiff-Appellee, v. Willie Smith, Jr., Defendant-Appellant.\n(No. 74-13;\nFifth District\nNovember 6, 1974.\nRobert E. Farrell, of Mt. Vernon, and Brenda Richey, of Chicago, both of State Appellate Defender\u2019s Office, for appellant.\nGuy M. Lahr, III, State\u2019s Attorney, of Metropolis, for the People." }, "file_name": "1019-01", "first_page_order": 1043, "last_page_order": 1047 }