{ "id": 3129419, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WADE EDSALL, Defendant-Appellant", "name_abbreviation": "People v. Edsall", "decision_date": "1981-03-17", "docket_number": "No. 79-410", "first_page": "469", "last_page": "474", "citations": [ { "type": "official", "cite": "94 Ill. App. 3d 469" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "383 N.E.2d 271", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "66 Ill. App. 3d 234", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3316978 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/66/0234-01" ] }, { "cite": "392 N.E.2d 772", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "73 Ill. App. 3d 1020", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3264874 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/73/1020-01" ] }, { "cite": "264 N.E.2d 207", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 1 }, { "cite": "47 Ill. 2d 38", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2905293 ], "opinion_index": 1, "case_paths": [ "/ill-2d/47/0038-01" ] }, { "cite": "392 N.E.2d 772", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "774" } ], "opinion_index": 1 }, { "cite": "73 Ill. App. 3d 1020", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3264874 ], "pin_cites": [ { "page": "1022" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/73/1020-01" ] } ], "analysis": { "cardinality": 616, "char_count": 12541, "ocr_confidence": 0.908, "pagerank": { "raw": 1.5762438323955902e-07, "percentile": 0.6795786163594866 }, "sha256": "e510a71756f0bef4f8d129598767527746164b9a815b0faf3e64ef7daf370a28", "simhash": "1:9d88bc075449b9e5", "word_count": 2098 }, "last_updated": "2023-07-14T16:56:05.907180+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. WADE EDSALL, Defendant-Appellant." ], "opinions": [ { "text": "Mr. PRESIDING JUSTICE KASSERMAN\ndelivered the opinion of the court:\nPetitioner, Wade Edsall, appeals from an order of the circuit court of St. Clair County dismissing his amended petition for post-conviction relief.\nFollowing a plea of guilty, judgment was entered finding petitioner guilty of the offense of murder, for which he was sentenced to a term of imprisonment of not less than 50 nor more than 150 years. However, immediately prior to sentencing on October 14,1977, petitioner filed two pro se motions, one requesting that a psychiatrist be appointed to examine him and the other asking leave to withdraw his plea of guilty. These motions were denied on December 2,1977. On appeal, the judgment and sentence were affirmed by this court. People v. Edsall (1979), 73 Ill. App. 3d 1020, 392 N.E.2d 772.\nWhile petitioner\u2019s direct appeal was pending before this court, he filed pro se a petition for post-conviction relief for the purpose of \u201cfilling out the record and bringing to light facts\u201d proving that his plea was accompanied by a substantial denial of his constitutional rights. Specific allegations were relied upon as indicating ineffective assistance of trial counsel. Counsel was appointed to represent petitioner and an amended petition was filed which repeated many of the allegations of the original petition and asserted additional grounds as indicating ineffective assistance of counsel. These new grounds as stated in paragraphs 6(a) and (b) of the amended petition are as follows:\n\u201ca.) That his retained attorney, James J. Gomric, failed to investigate grounds for, or raise an insanity or intoxication defense after facts supporting such a defense were presented to him and he was urged by Petitioner to follow said course.\nb.) That Mr. Gomric failed to request a hearing to determine Petitioner\u2019s fitness to be sentenced when said attorney knew of his mental condition.\u201d\nThere are no affidavits in support of the factual allegations appended to the amended petition. This absence is explained in paragraph 8 of the amended petition wherein it is stated that affidavits are precluded by the nature of the points raised in the amended petition. However, the amended petition was not filed without supporting documents. Attached to the amended petition are certain exhibits consisting of letters to the trial judge written by relatives of the petitioner. These letters attest to petitioner\u2019s defective mental health and request that the trial judge take steps to insure that petitioner receive adequate mental health care while incarcerated. Of particular significance is a letter written by petitioner\u2019s brother, Charles, which states in pertinent part:\n\u201cFrom the time we were young I always believed Wade wasn\u2019t \u2018right\u2019 or like me or the other kids.\n0 \u00ab \u00ab\nAt a young age he also enjoyed torturing animals, mostly he tied them up, soaked them with gas and burned them. Of if he felt like it he buried them alive.\nI was with him when we were 10-12 and he wanted to drop a kid off a viaduct to a road below to see if the kid would bounce.\nWhen we were around 15, he actually hung one of our brothers in a tree with a rope around his neck. Luckily one of us came around minutes later and cut him down.\n# e #\nThese things and many more which I\u2019d be glad to tell someone if they would take the time to listen, all lead me to believe Wade needs mental help, not just to be locked up without help.\nBesides telling Mr. J. Gomric I\u2019ve also called the Mental Health Center of St. Clair Co. 0 \u201d e for help for Wade.\u201d\nThe letter was filed less than a month after the judgment of guilty was entered against petitioner.\nThe State moved that the amended petition be dismissed; and the trial court, in dismissing the amended petition, engaged in the following colloquy with defense counsel:\n\u201c[Defense Counsel] JOHNSON: Your Honor you can file a petition for post-conviction relief while appeal is pending. It is clear that you can do that. You don\u2019t have to wait until the appeal is decided. And there are some issues here\u2014\nTHE COURT: What effect would that have on his appeal? Some of those issues are not Constitutional grounds.\nMR. JOHNSON: Oh, I think they are all are [sic], your Honor, most of them are. While some of them are raised on appeal, I think the ineffective assistance of counsel, if my recollection is correct, has not been raised on appeal and the Court could afford a hearing to the defendant on this matter, and at that time if it is denied it could be joined with the present appeal going on.\nTHE COURT: If I deny it, at this time, then the Appellate Court is going to seize upon that as saying that the appeal is not brought properly and they won\u2019t consider it. They have done it on several occasions. In other words\u2014\nMR. JOHNSON: Motion to dismiss on the full hearing\u2014\nTHE COURT: If I have a full hearing \u2014 the motion to dismiss, he can take right along if he thinks he has been wrong, he can take that right along with the regular appeal. No, I think this is brought prematurely. I think you should call the Court\u2019s attention to that. They look constantly for means to let somebody out, so call the Court\u2019s attention to it so they won\u2019t overlook it down there that I have allowed the motion to dismiss by the State\u2019s Attorney on the grounds it is brought prematurely, there being an appeal, full-scale appeal now pending before This Court.\nNow, I don\u2019t know what those geniuses who occupy the Appellate Defender\u2019s Office have put in the petition, but it is my suggestion that a copy of your motion be sent to them so that they can include every grounds [sic] stated here in the petition that is now pending or notice of appeal is now pending before the Appellate Court. In other words, I think you would do your job just as well, and the Appellate Court can hear it all at one time. If they see fit to send it back, so be it.\u201d\nOn appeal, petitioner contends that the trial court erred in summarily dismissing the amended post-conviction petition for the sole reason that petitioner\u2019s direct appeal was currently pending before this court. Petitioner requests that we remand for an evidentiary hearing on the amended petition.\nThe State contends that petitioner is precluded from asserting the issue of incompetence of trial counsel in a post-conviction proceeding for the reason that the issue could have been raised on direct appeal. It is well settled that issues are waived which could have been raised on direct appeal but were not, and they may not be raised in a post-conviction proceeding. (People v. Owsley (1978), 66 Ill. App. 3d 234, 383 N.E.2d 271.) After examining the record, we are of the opinion that the allegations presented in paragraphs 6(a) and (b) of the amended petition rely on certain facts not of record and, hence, were not subject to direct review. Paragraphs 6(a) and (b) of the amended petition allege incompetence of counsel as manifested by failure of counsel to investigate petitioner\u2019s mental status or request a fitness hearing prior to sentencing. The record is silent as to whether petitioner was mentally competent to plead guilty and be sentenced and, if not, to what extent his counsel was aware of petitioner\u2019s mental condition. Answers to these questions are essential in assessing counsel\u2019s conduct during the proceedings, and they are best answered in a post-conviction proceeding. Accordingly, the issue of incompetence as expressed in paragraphs 6(a) and (b) properly could be raised in a po^t-conviction proceeding.\nWe find no provisions in the Post-Conviction Hearing Act (Ill. Rev. Stat. 1979, ch. 38, par. 122 \u2014 1 et seq.) barring a trial court from considering a post-conviction petition while a direct appeal of petitioner\u2019s criminal conviction is pending. In the absence of such a provision, we conclude that a trial court\u2019s dismissal of a petition without an evidentiary hearing must be based upon the specific allegations appearing in the petition. It is apparent from the colloquy between the trial court and defense counsel that the dismissal was not predicated upon the allegations set forth in the amended petition, but upon the fact that a direct appeal was pending in this court.\nNext, the State argues that although the trial court articulated incorrect grounds for dismissing petitioner\u2019s post-conviction petition without an evidentiary hearing, the petition was correctly dismissed because it was not accompanied by supporting affidavits. Section 122 \u2014 2 of the Act states:\n\u201cThe petition shall have attached thereto affidavits, records, or other evidence supporting its allegations or shall state why the same are not attached.\u201d (Ill. Rev. Stat. 1979, ch. 38, par. 122 \u2014 2.)\nAs we previously have stated, the absence of any supporting affidavits is explained in paragraph 8 of the amended petition, in which it is stated that the nature of the allegations of the amended petition precludes the furnishing of affidavits. We conclude that the representation contained in paragraph 8 constitutes a satisfactory explanation of why no affidavits are attached to the petition. Further, we hold that the letters, particularly Charles Eds all\u2019s attached to the amended petition constitute evidence in support of the allegations contained in paragraphs 6(a) and (b) of the petition. These letters allege that defendant suffers from a mental disability and that the trial counsel was aware of this disability. Therefore, we hold that the amended petition substantially complies with section 122-2.\nFor the foregoing reasons, we reverse the order of the circuit court of St. Clair County and remand this cause for hearing on petitioner\u2019s petition for post-conviction relief.\nReversed and remanded.\nHARRISON, J., concurs.", "type": "majority", "author": "Mr. PRESIDING JUSTICE KASSERMAN" }, { "text": "Mr. JUSTICE JONES,\ndissenting:\nI respectfully dissent.\nThis court should hold defendant\u2019s post-conviction petition alleging incompetence of trial counsel is barred by res judicata and by waiver.\nThe opinion in the direct appeal reflects that in one of his pro se motions filed prior to sentencing defendant sought leave to withdraw the plea of guilty. In that motion he attacked the competency of his trial counsel by alleging that he had not been apprised of the full consequences of his plea by his attorney, and that he was coerced to plead guilty by his attorney.\nA new attorney was later appointed to assist defendant in presenting his pro se motions. Defendant also filed another motion pro se styled \u201cMotion for New Trial and Vacating Judgment.\u201d In that motion defendant specifically alleged that he had not been adequately represented by counsel. Defendant\u2019s newly appointed counsel filed a more elaborate motion in which an attack was made upon the quality of representation by defendant\u2019s trial counsel.\nThe foregoing matters were obviously in the record for the direct appeal for were it otherwise no mention of them could have been made in the opinion. Thus, it is also obvious that defendant could have raised the competency of counsel issue in his direct appeal. By failing to do so, he has waived that issue for a post-conviction petition. Although defendant purports to raise some issues in his post-conviction petition that were not of record during the direct appeal, it is obvious that they were matters that were known to him at the time and accordingly should have been included.\nBut the matter goes beyond the waiver stage. Language in the opinion on the direct appeal shows the competency issue was in fact presented to and decided by this court:\n\u201cUnder the circumstances, the court did not abuse its discretion in refusing leave to withdraw the plea of guilty on the basis of the alleged coercion by, and inadequacies of, trial counsel for the defendant.\u201d (Emphasis added.) 73 Ill. App. 3d 1020, 1022, 392 N.E.2d 772, 774.\nThis language of the opinion plainly shows that the matter of competency was raised and decided in defendant\u2019s direct appeal. The same issue which defendant presents in the post-conviction petition should be held to be barred by res judicata.\nOn the basis of People v. Wade (1970), 47 Ill. 2d 38, 264 N.E.2d 207,I would affirm.", "type": "dissent", "author": "Mr. JUSTICE JONES," } ], "attorneys": [ "John H. Reid and E. William Hutton, both of State Appellate Defender\u2019s Office, of Mt. Vernon, for appellant.", "Clyde L. Kuehn, State\u2019s Attorney, of Belleville (Martin N. Ashley and Christopher S. Carrol, both of State\u2019s Attorneys Appellate Service Commission, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WADE EDSALL, Defendant-Appellant.\nFifth District\nNo. 79-410\nOpinion filed March 17, 1981.\nJONES, J., dissenting.\nJohn H. Reid and E. William Hutton, both of State Appellate Defender\u2019s Office, of Mt. Vernon, for appellant.\nClyde L. Kuehn, State\u2019s Attorney, of Belleville (Martin N. Ashley and Christopher S. Carrol, both of State\u2019s Attorneys Appellate Service Commission, of counsel), for the People." }, "file_name": "0469-01", "first_page_order": 491, "last_page_order": 496 }