{
  "id": 2971127,
  "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. VERDELL TOLES, Defendant-Appellant",
  "name_abbreviation": "People v. Toles",
  "decision_date": "1976-07-28",
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  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
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  "casebody": {
    "judges": [],
    "parties": [
      "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. VERDELL TOLES, Defendant-Appellant."
    ],
    "opinions": [
      {
        "text": "Mr. JUSTICE RECHENMACHER\ndelivered the opinion of the court:\nDefendant was charged with the crime of burglary and after a jury trial was sentenced to a term of not less than 2 nor more than 6 years. On direct appeal, this court on September 26, 1975, affirmed the judgment of conviction. People v. Toles, 32 Ill. App. 3d 22.\nDefendant then filed a post-conviction petition pro se. On April 25, 1974, after Rolland J. McFarland, Esq., was appointed counsel for defendant by the court, an amended petition was filed, alleging a violation of defendant\u2019s constitutional rights because of the incompetence of his court-appointed trial counsel. On June 6, 1974, defendant filed an affidavit, which as to that allegation, merely stated that \u201cprior to trial\u201d defendant \u201cwas unable to confide in\u201d him, and that he \u201cwas of the opinion that said counsel was not providing him adequate and effective legal assistance in his defense.\u201d Upon the State\u2019s motion, defendant\u2019s amended post-conviction petition was dismissed on July 19, 1974, without an evidentiary hearing for the reason that it did not state grounds for relief.\nDefendant contends that his petition, \u201csupported by his own affidavit, containing 0 0 0 seven allegations of ineffective assistance * * * of his trial couns\u00e9l,\u201d was sufficient to require an evidentiary hearing. He argues that the State\u2019s motion to dismiss \u201cadmits the truth of the allegations and questions only their sufficiency.\u201d\nIt should be noted at the outset that the defendant did not, in his direct appeal, allege that his trial counsel was incompetent, and stated no reasons in his amended post-conviction petition for his failure to do so. In the absence of allegations, statements or affidavits \u201cwhich would excuse failure to urge the question of incompetency of counsel\u201d in his direct appeal, such basis for post-conviction relief is deemed to have been waived. People v. Hill, 44 Ill. 2d 299, 303; People v. Lynch, 32 Ill. App. 3d 350, 352.\nMoreover, to require an evidentiary hearing, a post-conviction petition must make a substantial showing of a violation of a constitutional right. (People v. Farnsley, 53 Ill. 2d 537.) In Farnsley the court stated at page 549:\n\u201cThe burden is on the defendant to clearly set forth in what respect his constitutional rights were violated and support the allegations with affidavits, records, or other evidence which establishes a violation of these rights. Absent such a showing, a petition may be dismissed without a hearing.\u201d\nWhere incompetency of counsel is alleged defendant must establish trial counsel\u2019s actual incompetence in the carrying out of his duties and substantial prejudice resulting therefrom without which the outcome would probably have been different. People v. Stepheny, 46 Ill. 2d 153.\nIn the case at bar defendant failed to attach to his petition affidavits, records or other evidence to establish the allegations of his petition and failed to state therein why adequate affidavits were not attached. (See Ill. Rev. Stat. 1973, ch. 38, par. 122 \u2014 2.) As noted above, the affidavit attached to defendant\u2019s amended petition merely made a conclusionary statement that he was denied effective assistance of counsel. We have nevertheless carefully considered each of the allegations of defendant\u2019s amended petition complaining of trial counsel\u2019s incompetence and find them insufficient.\nPeople v. Stepheny, 46 Ill. 2d 153, relied on by defendant is inapposite. There the petition clearly established defendant\u2019s right to an evidentiary hearing by the affidavits of certain witnesses whom his trial counsel failed to call or investigate concerning the nature and significance of their testimony.\nWe therefore affirm the judgment of the trial court of Winnebago County.\nJudgment affirmed.\nT. J. MORAN, P. J., and DIXON, J., concur.",
        "type": "majority",
        "author": "Mr. JUSTICE RECHENMACHER"
      }
    ],
    "attorneys": [
      "Ralph Ruebner and Joshua Sachs, both of State Appellate Defender\u2019s Office, of Elgin, for appellant.",
      "Philip G. Reinhard, State\u2019s Attorney, of Rockford (Edward N. Morris, Charles D. Sheehy, and Christine M. Drucker, all of Illinois State\u2019s Attorneys Association, of counsel), for the People."
    ],
    "corrections": "",
    "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. VERDELL TOLES, Defendant-Appellant.\nSecond District (2nd Division)\nNo. 75-303\nOpinion filed July 28, 1976.\nRalph Ruebner and Joshua Sachs, both of State Appellate Defender\u2019s Office, of Elgin, for appellant.\nPhilip G. Reinhard, State\u2019s Attorney, of Rockford (Edward N. Morris, Charles D. Sheehy, and Christine M. Drucker, all of Illinois State\u2019s Attorneys Association, of counsel), for the People."
  },
  "file_name": "0651-01",
  "first_page_order": 679,
  "last_page_order": 681
}