{
  "id": 2844820,
  "name": "The People of the State of Illinois, Plaintiff-Appellee, v. Ronald Richard Mass, Defendant-Appellant",
  "name_abbreviation": "People v. Mass",
  "decision_date": "1972-12-27",
  "docket_number": "No. 72-50",
  "first_page": "67",
  "last_page": "70",
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    "name_abbreviation": "Ill. App. Ct.",
    "id": 8837,
    "name": "Illinois Appellate Court"
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    "name": "Ill."
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  "last_updated": "2023-07-14T15:41:33.026395+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "The People of the State of Illinois, Plaintiff-Appellee, v. Ronald Richard Mass, Defendant-Appellant."
    ],
    "opinions": [
      {
        "text": "Mr. JUSTICE GUILD\ndelivered the opinion of the court:\nThe defendant waived prosecution by indictment and was charged in a joint information with two other defendants of attempt murder against two different individuals and one count of attempt burglary. On May 13, 1971, the defendant withdrew his pleas of not guilty to one count attempt murder and entered a plea of guilty thereto. A hearing in aggravation and mitigation was had on May 20, 1971, and the defendant was sentenced to 10-15 years in the State penitentiary.\nOn October 27, 1971, the defendant filed a pro se petition for rehearing in aggravation and mitigation. The public defender was appointed on November 22, 1971, to represent the defendant in \u201cpost-conviction matters\u201d and a hearing was held on December 23, 1971.\nThe appeal herein is from the order denying the motion for rehearing in aggravation and mitigation. Counsel for the defendant contends that this is a post-conviction hearing. The State insists the petition is not a post-conviction petition and the defendant is attempting to raise on appeal issues not raised at the trial and issues which cannot be raised by post-conviction petition.\nThe record discloses that the entire hearing consisted of the following:\n\u201cTHE COURT: What is your motion today? Is the Defendant in the penitentiary?\nMR. BEU: Yes, your Honor, he is in the penitentiary.\nWe were appointed to represent him on this petition. I have reviewed all the allegations he makes in the ten pages of written material pertaining to the conduct of the aggravation and mitigation hearing. I take it from the petition that one was held, and that he is complaining how it was held and the matters presented there. And that is the only allegation he raises in the petition.\nTHE COURT: I will deny his motion for additional hearing in aggravation and mitigation.\nMR. DOYLE: That is his prayer for relief.\u201d\nThe issue therefore presented in this appeal is whether or not the petition filed is a post-conviction petition pursuant to Ill. Rev. Stat. 1969, ch. 38, sec. 122. A post-conviction petition is a statutory petition for redress of the substantial denial of the constitutional rights of a person imprisoned in a penitentiary. The petition must meet the requirements of Ill. Rev. Stat. 1969, ch. 38, Sec. 122\u20142, one of which is to clearly set forth the basis in which petitioners constitutional rights were violated.\nPetitioner prayed for a new hearing in aggravation and mitigation, setting out at length his allegations of improper conduct by the State\u2019s Attorney and of additional information which he felt should have been introduced regarding himself. The public defender at that time apparently did not recognize any claim of denial of constitutional rights and so informed the court. The record reflects and it appears that the trial judge in appointing counsel for the defendant regarded the motion as something more than a rehearing in aggravation and mitigation. It would further appear that the trial court had lost jurisdiction upon the sentence and commitment of the defendant and that the only basis upon which the court could consider the defendant\u2019s petition was as a post-conviction matter. While the pro se \u201cMotion for Rehearing on aggravation and mitigation\u201d did not allege any constitutional violations of defendant\u2019s rights, we feel that the ends of justice would be best served by treating the same as a post-conviction petition. As indicated above, after defendant filed his pro se \u201cMotion\u201d the record discloses that counsel was in fact appointed to represent defendant \u201cin post-conviction matters.\u201d No useful purpose would be served by requiring defendant to file a new post-conviction petition. We therefore hold that the petition filed was a post-conviction petition. This being the case, appointed counsel should have complied with Ill. Rev. Stat. 1969, ch. 110-A, par. 651(c). That rule provides in substance that the appointed attorney shaU counsel with the defendant either in person or by mail, that he shall examine the record of proceedings at the trial, and that he shaU make \u201cany amendments to the petition filed pro se that are necessary for an adequate presentation of petitioner\u2019s contentions.\u201d See People v. Slaughter (1968), 39 Ill.2d 278, 235 N.E.2d 566.\nFrom the above quoted record it appears that appointed counsel failed to do any of the required duties imposed upon him by this rule. People v. Brown (1972), 52 Ill.2d 227.\nIn the appeal filed herein by the Illinois Defender Project, counsel for the first time has raised two other issues; the first being as to whether or not count II of the information herein failed to charge an offense, and secondly, whether the trial court in accepting the defendant\u2019s plea of guilty determined whether or not said plea was voluntarily obtained without coercion, duress, or promises made to him pursuant to Ill. Rev. Stat. 1969, ch. 110-A, sec. 402(b). This court does not consider these contentions as they may be a proper subject for consideration by the trial court in an evidentiary hearing.\nWe are not unmindful of our recent decision in People v. Cobb (1972), 8 Ill.App.3d 1081, 290 N.E.2d 610, in which we held that the trial court in its discretion might treat a petition for a writ of habeas corpus as a petition under the Post-Conviction Hearing Act, but is not required to do so. As indicated above, we are of the opinion that in the instant case, the trial court in its discretion did in effect treat defendant\u2019s \u201cmotion\" as a petition \u201cin post-conviction matters.\u201d\nWe therefore reverse the finding of the trial court and remand this matter to the trial court with directions to appoint counsel for the defendant and to conduct an evidentiary hearing under the provisions of the Post-Conviction Hearing Act, Ill. Rev. Stat. 1969, ch. 38, sec. 122.\nReversed and remanded with directions.\nSEIDENFELD, P. J., and ABRAHAMSON, J., concur.\nSUPPLEMENTAL OPINION\nMr. PRESIDING JUSTICE GUILD delivered the supplemental opinion of the court:\nThe State herein has filed a petition for rehearing alleging in substance that this court erred in concluding that defendant\u2019s pro se motion was a petition under the Post-Conviction Hearing Act. The State submits that we have indicated that defendant\u2019s motion did not contain allegations of a constitutional scope. We disagree.\n\u25a0 We reiterate that the Trial Judge herein must have concluded that defendant\u2019s motion was in fact a post-conviction hearing. The defendant was sentenced on May 20, 1971. He filed his \u201cmotion\u201d on October 27, 1971. It is patent that the court had lost jurisdiction to hear a \u201cMotion for rehearing in aggravation and mitigation\u201d on that date. The cotut obviously so recognized and in its order of November 22, 1971 appointing counsel, stated that the Public Defender was appointed to represent the defendant \u201cin post-conviction matters.\u201d The Supreme Court has stated in People v. Jones (1969), 43 I11.2d 160, at 162:\n\u201c* # * We have held it to be error to dismiss a post-conviction petition on the pleadings, as occurred here, where there has been inadequate representation by counsel, though the pro se petition itself fails to present a substantial constitutional claim. [Citations.]\u201d\nPetition for rehearing denied.\nSEIDENFELD and ABRAHAMSON, JJ., concur.",
        "type": "majority",
        "author": "Mr. JUSTICE GUILD"
      }
    ],
    "attorneys": [
      "Ralph Ruebner, of Elgin, for appellant.",
      "Philip G. Reinhard, State\u2019s Attorney, of Rockford, (James W. Jerz, of counsel,) for the People."
    ],
    "corrections": "",
    "head_matter": "The People of the State of Illinois, Plaintiff-Appellee, v. Ronald Richard Mass, Defendant-Appellant.\n(No. 72-50;\nSecond District\nDecember 27, 1972.\nSupplemental opinion upon denial of rehearing February 9, 1973.\nRalph Ruebner, of Elgin, for appellant.\nPhilip G. Reinhard, State\u2019s Attorney, of Rockford, (James W. Jerz, of counsel,) for the People."
  },
  "file_name": "0067-01",
  "first_page_order": 89,
  "last_page_order": 92
}