{ "id": 3197236, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ELLIS PARTEE, Defendant-Appellant", "name_abbreviation": "People v. Partee", "decision_date": "1980-07-08", "docket_number": "No. 79-90", "first_page": "679", "last_page": "683", "citations": [ { "type": "official", "cite": "85 Ill. App. 3d 679" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "379 N.E.2d 1291", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "62 Ill. App. 3d 910", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5622698 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/62/0910-01" ] }, { "cite": "233 N.E.2d 374", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "39 Ill. 2d 84", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2857693 ], "opinion_index": 0, "case_paths": [ "/ill-2d/39/0084-01" ] }, { "cite": "324 N.E.2d 243", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "25 Ill. App. 3d 1047", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2705392 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/25/1047-01" ] }, { "cite": "277 N.E.2d 133", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "50 Ill. 2d 49", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2911242 ], "opinion_index": 0, "case_paths": [ "/ill-2d/50/0049-01" ] }, { "cite": "42 U.S.C. \u00a71983", "category": "laws:leg_statute", "reporter": "U.S.C.", "year": 1976, "opinion_index": 0 }, { "cite": "29 Ill. App. 3d 423", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2503390 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/29/0423-01" ] } ], "analysis": { "cardinality": 556, "char_count": 10975, "ocr_confidence": 0.875, "pagerank": { "raw": 1.1549646509307595e-07, "percentile": 0.5822895466106325 }, "sha256": "9f4b68741acf5e8a4eed76a44ae35c562b6cbd7a8264eacbe9a22a858d94a0ae", "simhash": "1:b1c499b2af17259d", "word_count": 1757 }, "last_updated": "2023-07-14T18:26:52.691366+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. ELLIS PARTEE, Defendant-Appellant." ], "opinions": [ { "text": "Mr. JUSTICE STENGEL\ndelivered the opinion of the court:\nDefendant Ellis Partee appeals from the dismissal of his petition under the Post-Conviction Hearing Act (111. Rev. Stat. 1979, ch. 38, par. 122 \u2014 1 et seq.).\nPartee was convicted of two separate armed robberies following jury trials and received two concurrent sentences of 8 to 15 years imprisonment. On direct appeal this court affirmed the convictions and sentences, rejecting defendant\u2019s sole argument, that the sentences were excessive. People v. Partee (1975), 29 Ill. App. 3d 423, 331 N.E.2d Ill.\nSubsequently, on November 9,1976, defendant filed in the trial court a pro se post-conviction petition along with a motion for appointment of counsel and an affidavit in support of the motion. The petition alleged that appointed counsel on direct appeal was incompetent; that, over defendant\u2019s objections, only his sentence was appealed, and that various errors had been committed at trial. The court appointed Attorney Charles Hahn to represent defendant in connection with his post-conviction petition. After reading the record and consulting with defendant, Hahn filed a motion to withdraw the pro se post-conviction petition without prejudice on December 27, 1976. In a letter to defendant dated the following day, Hahn told defendant the motion was filed as agreed. The letter also indicated Hahn\u2019s intention to investigate the matter further. On December 30, 1976, the motion was allowed.\nAt this point the record becomes rather confusing. On July 5,1977, a letter from defendant to Hahn dated January 24, 1977, was filed in the trial court along with materials concerning a Federal civil suit defendant had brought against officials of the Pontiac Correctional Center under 42 U.S.C. \u00a71983 (1976). The suit involved alleged mistreatment of defendant at the prison. In the letter defendant stated he was sending the material so that Hahn could \u201cget an understanding of * * * what I need help with.\u201d\nThe next item in the record is the following entry in the docket sheet dated February 2, 1978:\n\u201cPetition filed. Attorney Charles Hahn appointed to represent the petitioner * *\nOn February 6,1978, more materials concerning defendant\u2019s Federal civil suit against' correctional officials were filed. A docket sheet entry of the same date indicates that the letter and papers captioned \u201cIn the U.S. District Court\u201d were returned to defendant with the suggestion that he forward them to that court.\nOn May 4,1978, a letter from defendant to a judge of the circuit court was filed. The letter requested action on defendant\u2019s petitions under the Post-Conviction Hearing Act and for habeas corpus. Shortly thereafter a hearing was conducted. Hahn appeared on behalf of defendant who was not present. At the hearing the trial judge described the letter he received from defendant seeking action on his petitions. The court expressed some confusion about the February 2,1978, docket sheet entry indicating that a petition was filed, and that Hahn was appointed to represent defendant. Said the court:\n\u201cI don\u2019t know of anything that was pending except that I must have had something from [defendant] to bring the matter up.\u201d\nHahn informed the court that he wrote defendant a letter on February 28, 1978, asking him to explain what action he wanted taken. According to Hahn, defendant\u2019s letter in reply had nothing to do with the petition for post-conviction relief. Said Hahn:\n\u201cAll it said was that he knew I had withdrawn it without prejudice as per our agreement \u201d* because I explained to him that a post-conviction couldn\u2019t give him relief from incompetency of his public defender on appellate level \u00b0 \u201d\nThe court indicated it had no record of a petition for habeas corpus or a petition under the Post-Conviction Hearing Act other than the one that had been withdrawn. Hahn replied that he did not know of any other post-conviction petition. Shortly thereafter the following colloquy occurred:\n\u201cTHE COURT: * * \u00b0 [H]as [defendant] ever given you any information which would enable you to file a post-conviction in this court regarding the deprivation of constitutional rights at the trial court level?\nMR. HAHN: None.\nTHE COURT: Was his case appealed?\nMR. HAHN: Yes, it was.\n<* # e\nTHE COURT: And his conviction was sustained?\nMR. HAHN: Yes, it was.\u201d\nAfter Hahn described the original pro se petition, the court stated:\n\u201c[I]t is clear to me that [defendant] simply doesn\u2019t have anything to raise with this court.\u201d\nThe court then terminated Hahn\u2019s appointment and ordered \u201cthe pending post-conviction petition\u201d dismissed without prejudice.\nOn June 13, 1978, defendant filed another pro se.petition under the Post-Conviction Hearing Act. It referred to the first petition withdrawn without prejudice and to defendant\u2019s repeated requests to the court to reinstate the petition \u201calong the lines appointed counsel had suggested,\u201d which requests resulted in the second dismissal without prejudice. It incorporated the allegations of the first petition, alleged incompetence of appointed counsel on direct appeal, and requested the appointment of Attorney Lawrence Begun. The court directed the State to find out if Begun would accept the appointment. The court held a hearing on June 28, 1978, at which only the State was represented. Assistant State\u2019s Attorney Badger informed the court that Begun said he represented defendant in a Federal civil suit but did not wish to accept the appointment because he did not practice criminal law. The court asked Badger if the new petition set forth any grounds for relief, and she replied:\n\u201cIt doesn\u2019t really, Judge. * * * He had mailed the petition to the Court seeking a post-conviction relief before. He is saying * * * that the conviction resulted from a substantial denial of his constitutional rights as guaranteed under the 14th amendment. However, he doesn\u2019t specify what those denials of his constitutional rights were * * *.\u201d\nThe court then ordered the petition dismissed with prejudice, finding that:\n\u201cEllis Partee has been given sufficient opportunity and legal counsel for the purpose of finding and alleging grounds for relief under post-conviction and has not done so.\u201d\nIn his appeal from that order, defendant makes several arguments, but we need consider only one. He contends he was denied his statutory right to the assistance of counsel with his most recent post-conviction petition. We agree.\nSection 122 \u2014 4 of the Code of Criminal Procedure of 1963 provides, in part:\n\u201cIf the petitioner is without counsel and alleges that he is without means to procure counsel, he shall state whether or not he wishes counsel to be appointed to represent him. If appointment of counsel is so requested, the court shall appoint counsel if satisfied that the petitioner has no means to procure counsel.\u201d Ill. Rev. Stat. 1979, ch. 38, par. 122 \u2014 4.\nIn People v. Dye (1971), 50 Ill. 2d 49, 277 N.E.2d 133, the trial court dismissed the defendant\u2019s post-conviction petition on the State\u2019s motion without inquiring as to the defendant\u2019s indigence or appointing counsel for him. The State sought to defend this action by pointing out that the petition neither requested such appointment nor alleged indigence. The supreme court observed that an entry finding the defendant indigent and appointing counsel on direct appeal appeared on the same docket sheet as the dismissal of the petition, and that the defendant had been incarcerated since the date of that entry. Under those circumstances, the supreme court concluded, the trial court should have appointed counsel, or, at least, ascertained that the defendant did not desire counsel. See also People v. Williams (1975), 25 Ill. App. 3d 1047, 324 N.E.2d 243.\nIn the instant case, upon being informed that Begun declined the appointment, the trial court should have appointed other counsel or, at least, determined that defendant did not desire other counsel. The docket sheet entries reflecting Hahn\u2019s previous appointments as well as defendant\u2019s petition itself showed his indigence. If a waiver of the statutory right to counsel is not effected by a petition which is silent on the matter, it cannot be waived by a petition which requests the appointment of a specific attorney who subsequently declines the appointment.\nThe State argues, however, that any error in this regard was harmless. It cites People v. Polansky (1968), 39 Ill. 2d 84, 233 N.E.2d 374, for the proposition that the legislative purpose of section 122 \u2014 4 is to provide a means whereby a petitioner with meritorious post-conviction claims will have the assistance of counsel in drafting a legally sufficient petition. Since at the May 10, 1978, hearing Hahn told the court that defendant\u2019s first pro se petition could not be amended to state a basis for relief, and since the latest pro se petition contains no allegations different from those in the first, the State argues, the purpose of the statute, to provide legal assistance to petitioners with meritorious claims, would not be furthered by appointment of counsel in the instant case.\nWe disagree. It is true that at the hearing on May 10, 1978, Hahn represented that defendant had not provided him with information with which he could amend the first pro se petition to set forth a basis for relief. Whether facts harm come to light since that hearing which would justify post-conviction relief, we have no way of knowing. From the record before us, we cannot determine that counsel would have been unable to prepare a legally sufficient petition. We believe it noteworthy that section 122 \u2014 4 is phrased in mandatory terms. It provides that the court \u201cshall\u201d appoint counsel if requested by an indigent defendant. We cannot conclude the failure to appoint counsel, or, at least, to ascertain that defendant did not desire counsel was a harmless error.\nWhether to permit withdrawal of a petition prior to entry of judgment is a matter for the trial court\u2019s discretion. (Ill. Rev. Stat. 1979, ch. 38, par. 122 \u2014 5.) Having exercised its discretion to permit withdrawal of defendant\u2019s first petition, the trial court could not properly dismiss the subsequent petition without following section 122 \u2014 4.\nFor the reasons stated above, the order of the Circuit Court of Will County is reversed and the cause remanded for proceedings consistent with this opinion. We believe it appropriate to note that an attorney appointed on remand would be under no duty to advance specious claims of constitutional deprivation. People v. Potcher (1978), 62 Ill. App. 3d 910, 379 N.E.2d 1291.\nReversed and remanded.\nALLOY, P. J., and STOUDER, J., concur.", "type": "majority", "author": "Mr. JUSTICE STENGEL" } ], "attorneys": [ "Kenneth A. Gmacek, of Joliet, for appellant.", "Edward F. Petka, State\u2019s Attorney, of Joliet (John X. Breslin and Kenneth A. Wilhelm, both of State\u2019s Attorneys Appellate Sendee Commission, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ELLIS PARTEE, Defendant-Appellant.\nThird District\nNo. 79-90\nOpinion filed July 8, 1980.\nKenneth A. Gmacek, of Joliet, for appellant.\nEdward F. Petka, State\u2019s Attorney, of Joliet (John X. Breslin and Kenneth A. Wilhelm, both of State\u2019s Attorneys Appellate Sendee Commission, of counsel), for the People." }, "file_name": "0679-01", "first_page_order": 701, "last_page_order": 705 }