{ "id": 2987095, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GARY STEIN, Defendant-Appellant", "name_abbreviation": "People v. Stein", "decision_date": "1993-12-28", "docket_number": "Nos. 3\u201493\u20140107 through 3\u201493\u20140110 cons.", "first_page": "847", "last_page": "850", "citations": [ { "type": "official", "cite": "255 Ill. App. 3d 847" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "571 N.E.2d 736", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "143 Ill. 2d 61", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5591473 ], "opinion_index": 0, "case_paths": [ "/ill-2d/143/0061-01" ] }, { "cite": "579 N.E.2d 829", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "144 Ill. 2d 242", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5592120 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/ill-2d/144/0242-01" ] }, { "cite": "607 N.E.2d 951", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "240 Ill. App. 3d 1031", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5137476 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/240/1031-01" ] }, { "cite": "596 N.E.2d 703", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "232 Ill. App. 3d 198", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 8498562 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/232/0198-01" ] }, { "cite": "549 N.E.2d 742", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "pin_cites": [ { "page": "746" } ], "opinion_index": 0 }, { "cite": "192 Ill. App. 3d 943", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2506627 ], "year": 1992, "pin_cites": [ { "page": "949" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/192/0943-01" ] }, { "cite": "606 N.E.2d 1137", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "153 Ill. 2d 130", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 4738666 ], "opinion_index": 0, "case_paths": [ "/ill-2d/153/0130-01" ] }, { "cite": "608 N.E.2d 359", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "240 Ill. App. 3d 805", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5137714 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/240/0805-01" ] }, { "cite": "609 N.E.2d 304", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "154 Ill. 2d 227", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 4821172 ], "opinion_index": 0, "case_paths": [ "/ill-2d/154/0227-01" ] }, { "cite": "539 N.E.2d 804", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "183 Ill. App. 3d 417", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2629988 ], "pin_cites": [ { "page": "423" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/183/0417-01" ] }, { "cite": "491 N.E.2d 773", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "142 Ill. App. 3d 178", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3448309 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/142/0178-01" ] } ], "analysis": { "cardinality": 400, "char_count": 7206, "ocr_confidence": 0.778, "pagerank": { "raw": 8.428443561396604e-08, "percentile": 0.48382724243768654 }, "sha256": "88a68aef7b73ef0b8b1396c4048cd27c262b799e76e5f9cc885335b0d5859c85", "simhash": "1:3356140e76c73c74", "word_count": 1144 }, "last_updated": "2023-07-14T21:02:11.364828+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. GARY STEIN, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE SLATER\ndelivered the opinion of the court:\nDefendant, Gary Stein, appeals from an order of the circuit court dismissing his post-conviction petition without an evidentiary hearing. We affirm.\nOn October 23, 1990, defendant entered negotiated pleas of guilty to charges of home invasion, burglary, and two charges of residential burglary. He was sentenced to four concurrent terms of imprisonment ranging from 7 to 20 years in accordance with the plea agreement. On December 6, 1990, defendant filed a motion to withdraw his guilty pleas. This motion was dismissed as untimely because it was not filed within 30 days of sentencing. On January 17, 1992, defendant filed a petition for post-conviction relief. The petition alleged that: (1) his trial counsel was ineffective in failing to investigate a duress defense; (2) his involuntary confession was improperly admitted; (3) his bail was excessive; and (4) his guilty pleas were involuntary because of an unfulfilled promise of leniency by his trial counsel. Defendant moved for the appointment of counsel. That motion was granted and the petition was docketed for further action on March 24,1992.\nThe State filed a motion to dismiss defendant\u2019s petition. In its order granting the State\u2019s motion, the trial court set forth two reasons for the dismissal:\n\u201cC. Defendant did not allege that he requested his attorney to file a motion to withdraw his guilty plea or to appeal.\nD. Defendant provides no support for his allegations.\u201d\nOn appeal, defendant contends that the trial court erred in basing the dismissal of his petition on his failure to allege in the petition that he had asked his attorney to file a motion to withdraw his guilty pleas or to appeal. We agree. A defendant who pleads guilty is not required to withdraw his guilty plea and perfect a direct appeal pursuant to Supreme Court Rule 604(d) (134 Ill. 2d R. 604(d)) in order to pursue post-conviction relief. (People v. Brumas (1986), 142 Ill. App. 3d 178, 491 N.E.2d 773 (holding that Rule 604(d) is inapplicable to post-conviction proceedings, and guilty plea does not result in waiver of all issues raised in post-conviction petition when voluntariness of plea itself is raised); see also People v. Phillips (1989), 183 Ill. App. 3d 417, 423, 539 N.E.2d 804 (\u201cwithdrawal of the guilty plea was not necessary for a post-conviction petition\u201d).) Because defendant was not required to allege in his petition that he had asked his attorney to file a motion to withdraw his guilty pleas, the trial court abused its discretion in dismissing defendant\u2019s motion on that basis.\nHowever, the trial court also granted the State\u2019s motion to dismiss based upon defendant\u2019s failure to provide any support for the allegations in his petition. We find that the trial court did not abuse its discretion in dismissing the petition on this basis.\nTo merit an evidentiary hearing, a post-conviction petition must make a substantial showing that defendant\u2019s constitutional rights have been violated. (People v. Johnson (1993), 154 Ill. 2d 227, 609 N.E.2d 304.) The petition must contain specific factual allegations rather than conclusory statements. (People v. Janis (1992), 240 Ill. App. 3d 805, 608 N.E.2d 359.) The defendant has the burden of supporting the factual allegations in the petition by affidavits, the record, or other evidence containing specific facts. (People v. Collins (1992), 153 Ill. 2d 130, 606 N.E.2d 1137.) \u201cNonmeritorious petitions may be dismissed without a hearing on the basis of what is contained in the petition and what is revealed in the record of the trial or other proceedings.\u201d (People v. Pittman (1989), 192 Ill. App. 3d 943, 949, 549 N.E.2d 742, 746.) The decision to dismiss a post-conviction petition without an evidentiary hearing is within the discretion of the trial court and will not be reversed absent an abuse of that discretion. People v. Hartfield (1992), 232 Ill. App. 3d 198, 596 N.E.2d 703.\nIn the present case, defendant\u2019s petition contains conclusory statements alleging violations of his constitutional rights because: he received ineffective assistance of counsel by his trial counsel\u2019s failure to investigate a duress defense; his involuntary confession was improperly admitted; he was held to excessive bail; and his guilty plea was involuntary because of an unfulfilled promise of leniency by defendant\u2019s trial counsel. Defendant\u2019s petition sets forth no evidence to support these conclusionary allegations, and he has filed no affidavit to support his petition. Defendant fails to explain why he believes his counsel should have investigated a duress defense. He fails to even allege facts to explain how or why he was under duress at the time he committed the instant offenses. Defendant also fails to explain why he believes his written confession was involuntary, or why he believes he was held to excessive bail. Defendant simply failed to allege any specific facts which would support these claimed constitutional violations.\nDefendant\u2019s contention that his guilty pleas were involuntary because of an unfulfilled promise of leniency is also unexplained in the petition. In another pleading defendant did assert that defense counsel had promised him a sentence of 10 years in prison and service in a medium security prison. This assertion, however, was not made in defendant\u2019s post-conviction petition or in an attached affidavit. Moreover, we find this unsubstantiated assertion insufficient to rebut the record of the plea hearing in which defendant indicated that neither threats nor promises, other than the plea agreement, motivated him in entering the guilty pleas. The record also establishes that the court informed defendant of the potential sentences before accepting the pleas, and that defendant was in fact sentenced in accordance with his plea agreement. Where the record refutes defendant\u2019s assertion that his plea was involuntarily entered, the petition may properly be dismissed by the trial court. (People v. Fern (1993), 240 Ill. App. 3d 1031, 607 N.E.2d 951 (petition alleging involuntariness of guilty pleas properly dismissed where record of plea hearing refuted defendant\u2019s claims of threats and unfulfilled promises on part of defense counsel); see also People v. Jones (1991), 144 Ill. 2d 242, 579 N.E.2d 829; Peo pie v. Huante (1991), 143 Ill. 2d 61, 571 N.E.2d 736.) We conclude that the trial court was well within its discretion in dismissing defendant\u2019s petition without an evidentiary hearing based on defendant\u2019s failure to support his allegations by affidavits, the record, or other evidence containing specific facts as required.\nFor the reasons stated above, the order of the circuit court of Peoria County is affirmed.\nAffirmed.\nMcCUSKEY, P.J., and STOUDER, J., concur.", "type": "majority", "author": "JUSTICE SLATER" } ], "attorneys": [ "Verlin R. Meinz, of State Appellate Defender\u2019s Office, of Ottawa, for appellant.", "Kevin W. Lyons, State\u2019s Attorney, of Peoria (John X. Breslin and Judith Z. Kelly, both 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. GARY STEIN, Defendant-Appellant.\nThird District\nNos. 3\u201493\u20140107 through 3\u201493\u20140110 cons.\nOpinion filed December 28, 1993.\nVerlin R. Meinz, of State Appellate Defender\u2019s Office, of Ottawa, for appellant.\nKevin W. Lyons, State\u2019s Attorney, of Peoria (John X. Breslin and Judith Z. Kelly, both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "0847-01", "first_page_order": 867, "last_page_order": 870 }