{
  "id": 2791584,
  "name": "The People of the State of Illinois, Respondent-Appellee, v. Ira J. Coleman, Petitioner-Appellant",
  "name_abbreviation": "People v. Coleman",
  "decision_date": "1975-10-10",
  "docket_number": "No. 60557",
  "first_page": "949",
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  "last_updated": "2023-07-14T16:14:58.460223+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
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  "casebody": {
    "judges": [],
    "parties": [
      "The People of the State of Illinois, Respondent-Appellee, v. Ira J. Coleman, Petitioner-Appellant."
    ],
    "opinions": [
      {
        "text": "Mr. JUSTICE DRUCKER\ndelivered tire opinion of the court:\nDefendant appeals from the dismissal of his post-conviction petition without an evidentiary hearing and the denial of his petition for substitution of judges. Defendant, along with Ben Arnold and Fred Thompson, was indicted for the murder of defendant\u2019s wife. On July 17, 1969, Arnold and Thompson pleaded guilty and were sentenced. On the same day defendant signed a jury waiver and proceeded to a bench trial before Judge Minor K. Wilson. Arnold and Thompson testified for the State. On July 25, 1969, defendant was found guilty and sentenced to a term of 40 to 60 years. On direct appeal the Supreme Court affirmed the conviction. (People v. Coleman, 49 Ill.2d 565, 276 N.E.2d 721.) Defendant then filed a pro se post-conviction petition (Ill. Rev. Stat. 1971, ch. 38, par. 122 \u2014 1) and subsequently the Public Defender filed both a supplemental petition and a petition for substitution of judges in his behalf. The State filed an answer and a motion to dismiss. After a hearing on that motion, Judge Wilson dismissed both petitions. On appeal defendant contends that it was error to dismiss the petitions.\nDefendant claimed that his jury waiver was coerced by conversations dehors the record. In support of that allegation various affidavits were filed, including that of Warren Wolfson, defendant\u2019s trial counsel. It stated that Assistant State\u2019s Attorney William Wise told him that should the case proceed to trial with a jury, the State would ask for the death penalty. No such request would be made if the case proceeded to a bench trial. Attorney Wolfson also stated that the \u201cfourth term\u201d (120-day period in which the State must bring a case to trial) was about to end when the case was scheduled for trial. He and Iris client had planned to proceed with a jury trial before Judge Wilson but were informed that the judge could not preside over a jury trial as he was about to leave town. Judge Wilson did state that he would be able to hear the case if a jury was waived. Wolfson met with Chief Judge Boyle and was informed that only Judge Delaney would be available to preside over an immediate jury trial. Defendant was informed of the situation and decided not to ask for a continuance but rather chose to proceed immediately to a bench trial before Judge Wilson because \u201che liked Judge Wilson and wanted him to hear the case.\u201d Defendant also filed the affidavits of two relatives which stated that Attorney Wolfson had told them that a bench trial was acceptable because the State\u2019s case against defendant was weak.\nThe State filed the affidavit of former Assistant State\u2019s Attorney William Wise which denied ever using the death penalty as a threat in order to force defendant to waive a jury trial.\nAs the basis of his petition for substitution of judges defendant stated in his supplemental petition that \u201cit is believed by the petitioner\u201d tiiat Judge Wilson was party to an improper conversation with defendant\u2019s fellow prisoner, Robert Walton. In support, the affidavit of another fellow prisoner, Robert Curtis, was filed. It alleged that shortly before defendant\u2019s trial, an unnamed Assistant State\u2019s Attorney visited his tier and talked to Walton; that immediately thereafter, the Assistant State\u2019s Attorney asked Curtis to corroborate testimony that was going to be given (by Walton) that defendant had attempted to suborn his fellow prisoners; and that he (Curtis) refused to help the Assistant State\u2019s Attorney. It is important to note that Curtis\u2019 affidavit also states that \u201che could not swear\u201d to the actual occurrence of any conversation between Walton and Judge Wilson. Attorney Wolfson filed a Habeas Corpus ad Testificandum as to Curtis but did not call him as a witness.\nThe supplemental petition also alleges that Walton was cooperating with the State\u2019s Attorney in another matter and had an opportunity to converse with Judge Wilson when, on July 24, 1969, his case was called before Judge Wilson and continued.\nThe State filed the affidavits of the two Assistant State\u2019s Attorneys in the case, in which they both denied ever talking with Walton dr Curtis concerning defendant\u2019s case.\nOpinion\nDefendant first contends that his constitutional right to a trial by jury was violated because his jury waiver was coerced by the State\u2019s Attorney\u2019s conditioned leniency concerning the death penalty. We disagree. Even if the waiver was totally predicated upon the fear of a potential death sentence, we find that, in itself, is not a denial of defendant\u2019s rights. It is well established that a defendant\u2019s constitutional rights are not violated when he pleads guilty, thereby giving up the right to any trial, in order to limit the possibility of receiving the death penalty. (Brady v. United States, 397 U.S. 742, 25 L.Ed.2d 747, 90 S.Ct. 1463; People v. Scott, 49 Ill.2d 231, 274 N.E.2d 39.) We believe that the prospect of the same limitation will not invalidate a jury waiver. Moreover, a careful inspection of the affidavits supports the State\u2019s claim that defendant\u2019s jury waiver was based either on a desire for an immediate trial before a certain judge or a trial tactic advised by his attorney.\nAs to defendant\u2019s second contention that Judge Wilson erred in not recusing himself, we find that it is also without merit. Tire right to a substitution of judges at a post-conviction proceeding is not a matter of absolute right. (People v. Wilson, 37 Ill.2d 617, 230 N.E.2d 194.) Unless it is shown that substantial prejudice to the defendant will result, the same judge who presided over defendant\u2019s trial shall hear his post-conviction petition. (People v. Mamolella, 42 Ill.2d 69, 245 N.E.2d 485.) To establish a constitutional violation a defendant must allege facts which, if true, would show prejudice or bias on the part of the trial judge. (People v. Evans, 37 Ill.2d 27, 224 N.E.2d 778.) A mere conclusion, even though under oath, is not sufficient to establish the violation of any constitutional right. (People v. Hoffman, 25 Ill.App.3d 261, 322 N.E.2d 865.) As previously noted, Robert Curtis\u2019 affidavit does not contain any positive allegation of fact as to any conversation between Judge Wilson and Walton; it is based on belief \u2014 to which defendant was unwilling to swear. Additionally, the failure to attach a supporting affidavit of Walton, the alleged participant in the conversation with Judge Wilson, or to adequately explain its absence, will permit a dismissal of a petition where defendant\u2019s allegations are not substantially borne out. (People v. Smith, 40 Ill.2d 562, 241 N.E.2d 413.) Therefore, we affirm the order dismissing defendant\u2019s petitions.\nAffirmed.\nBARRETT, P. J., and LORENZ, J., concur.",
        "type": "majority",
        "author": "Mr. JUSTICE DRUCKER"
      }
    ],
    "attorneys": [
      "Paul Bradley and Patrick J. Hughes, Jr., both of State Appellate Defender\u2019s Office, of Chicago, for appellant.",
      "Bernard Carey, State\u2019s Attorney, of Chicago (Laurence J. Bolon and John T. Theis, Assistant State\u2019s Attorneys, of counsel), for the People."
    ],
    "corrections": "",
    "head_matter": "The People of the State of Illinois, Respondent-Appellee, v. Ira J. Coleman, Petitioner-Appellant.\n(No. 60557;\nFirst District (5th Division) \u2014\nOctober 10, 1975.\nPaul Bradley and Patrick J. Hughes, Jr., both of State Appellate Defender\u2019s Office, of Chicago, for appellant.\nBernard Carey, State\u2019s Attorney, of Chicago (Laurence J. Bolon and John T. Theis, Assistant State\u2019s Attorneys, of counsel), for the People."
  },
  "file_name": "0949-01",
  "first_page_order": 975,
  "last_page_order": 978
}