{
  "id": 2852377,
  "name": "The People of the State of Illinois, Respondent-Appellee, v. Clarence Kirk, Petitioner-Appellant",
  "name_abbreviation": "People v. Kirk",
  "decision_date": "1972-12-27",
  "docket_number": "No. 57146",
  "first_page": "483",
  "last_page": "485",
  "citations": [
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      "cite": "9 Ill. App. 3d 483"
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  "court": {
    "name_abbreviation": "Ill. App. Ct.",
    "id": 8837,
    "name": "Illinois Appellate Court"
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    "name_long": "Illinois",
    "name": "Ill."
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      "category": "reporters:state_regional",
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      "cite": "107 N.E.2d 721",
      "category": "reporters:state_regional",
      "reporter": "N.E.2d",
      "year": 1967,
      "opinion_index": 0
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    {
      "cite": "412 Ill. 528",
      "category": "reporters:state",
      "reporter": "Ill.",
      "case_ids": [
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      "year": 1967,
      "opinion_index": 0,
      "case_paths": [
        "/ill/412/0528-01"
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    {
      "cite": "222 N.E.2d 498",
      "category": "reporters:state_regional",
      "reporter": "N.E.2d",
      "opinion_index": 0
    },
    {
      "cite": "36 Ill.2d 292",
      "category": "reporters:state",
      "reporter": "Ill. 2d",
      "case_ids": [
        5378619
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      "case_paths": [
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  "analysis": {
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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, Respondent-Appellee, v. Clarence Kirk, Petitioner-Appellant."
    ],
    "opinions": [
      {
        "text": "Mr. PRESIDING JUSTICE DIERINGER\ndelivered the opinion of the court:\nClarence Kirk, hereinafter \u201cpetitioner,\u201d was convicted of the crime of murder and was sentenced to a term of fifteen years to thirty years in the penitentiary. On direct appeal the judgment, of conviction was affirmed. (People v. Kirk (1966), 36 Ill.2d 292, 222 N.E.2d 498.) Petitioner thereafter filed a pro se petition pursuant to the Illinois Post-Conviction Hearing Act alleging a violation of his constitutional rights. (Ill. Rev. Stat. 1969, ch. 38, sec. 122 \u2014 1 et seq.) The petition was dismissed and petitioner appealed to the Illinois Supreme Court which subsequently transferred the appeal to this court.\nAt the hearing on the State\u2019s motion to dismiss the petition, the assistant public defender appointed to represent petitioner stated in addition to the matter alleged in the petition of improper closing argument at trial, the petitioner had indicated in correspondence with counsel he also wished to raise an additional point of an allegedly coerced confession having been entered into evidence at trial. Petitioner\u2019s counsel then represented to the court that both questions were raised on the direct appeal of the conviction and made an oral motion for leave to withdraw, without prejudice, the petition because it presented no constitutional question. Petitioner\u2019s counsel also represented to the court another assistant public defender interviewed petitioner in jail and learned nothing that would indicate his constitutional rights were violated. The ground advanced by counsel for withdrawal of the petition was, although neither she nor the other assistant public defender could find a constitutional violation after a thorough review of the record and results of the interviews with petitioner, it was \u201cpossible\u201d some lawyer in the future might find a constitutional violation, and a dismissal of the present petition would jeopardize the filing of one in the future. The petition was dismissed on grounds of res judicata and failing to present a constitutional question.\nPetitioner advances as grounds for reversal the denial of his motion to withdraw the petition was error in that the resultant dismissal of the petition will jeopardize the filing of another petition in the future in the event a constitutional violation is found.\nSection 122 \u2014 5 of the Criminal Code provides in part: \u201cThe court may in its discretion grant leave, at any stage of the proceeding prior to entry of judgment, to withdraw the petition.\u201d (Ill. Rev. Stat. 1969, ch. 38, sec. 122 \u2014 5.) No cases have been cited, or found, interpreting or analyzing this section of the Post-Conviction Hearing Act.\nThe trial court heard the representations made by petitioners counsel that he thoroughly reviewed the record of the trial; that he corresponded with petitioner as did another assistant public defender; that neither he nor the other counsel found any constitutional violation; and those matters raised by the petition and in the petitioners interviews were already answered by the Supreme Court on the direct appeal. He requested permission to withdraw the petition rather than it be dismissed, because of the \u201cpossibility\u201d some other lawyer would uncover a violation of petitioner\u2019s rights at trial of constitutional magnitude. The trial court properly exercised its discretion in denying petitioner\u2019s motion to withdraw and in allowing the State\u2019s motion to dismiss.\nThe cases cited by petitioner are not analogous to the case at bar: People v. Morreale (1952), 412 Ill. 528, 107 N.E.2d 721; People v. Walston (1967), 38 Ill.2d 39, 230 N.E.2d 233.\nThe further arguments raised by petitioner are not well taken: that the trial judge erroneously stated petitioner could raise new matters on appeal from the court\u2019s order, and petitioner\u2019s counsel did not argue the petition before it was dismissed. A review of the record involving both of these matters reveals the contrary to be true.\nFor these reasons the order is affirmed.\nOrder affirmed.\nBURMAN and ADESKO, JJ., concur.",
        "type": "majority",
        "author": "Mr. PRESIDING JUSTICE DIERINGER"
      }
    ],
    "attorneys": [
      "Michael F. Borun, of Chicago, for appellant.",
      "William J. Scott, Attorney General, of Springfield, and Edward V. Hanrahan, State\u2019s Attorney, of Chicago, (James B. Zagel, Assistant Attorney General, and Robert A. Novelle and Richard Jalovec, Assistant State\u2019s Attorneys, of counsel,) for the People."
    ],
    "corrections": "",
    "head_matter": "The People of the State of Illinois, Respondent-Appellee, v. Clarence Kirk, Petitioner-Appellant.\n(No. 57146;\nFirst District\nDecember 27, 1972.\nMichael F. Borun, of Chicago, for appellant.\nWilliam J. Scott, Attorney General, of Springfield, and Edward V. Hanrahan, State\u2019s Attorney, of Chicago, (James B. Zagel, Assistant Attorney General, and Robert A. Novelle and Richard Jalovec, Assistant State\u2019s Attorneys, of counsel,) for the People."
  },
  "file_name": "0483-01",
  "first_page_order": 505,
  "last_page_order": 507
}